Introduction
In Boruto: Next Generations, the most recent concluded story arc sees Boruto Uzamaki traveling to and then dealing with the Land of Water’s largest threat to its sovereignty in recent years: the Funato Clan.
The Funato Clan is a small, but mighty clan that exists within the Land of Water’s territory. In the Land of Water, the Funato clan is treated as a pariah because the clan terrorizes the Land of Water on the open sea. It also has a reputation, that is substantiated, for having its members killed early on in their clan membership if they are perceived as possessing some form of “weakness.” This has led the Land of Water to have captured the Funato Clan’s leader to try and prevent larger conflict. This backfired.
Within Boruto’s time in the Land of Water we see the Funato Clan break out their imprisoned leader, see the Funato Clan recompose their forces and then assault the Land of Water. This leads us to ask a few questions. Is the Funato Clan a group of ninjas that are engaged in piracy? If so, does piracy fall under international law and how should the Land of Water approach their actions? Does the actions taken by Funato extend past simple piracy and escalate into a form of armed conflict? If so, what kind of conflict has formed and what are the constraints? This article will answer this question set.
Piracy
We know from the show that the Funato Clan terrorizes their fellow citizens on the open water and has generated substantial fear amongst the citizens of the Land of Water. Before we can apply the label of “pirates” to the Funato Clan, we have to see if their actions check off a few boxes. These boxes are provided in Article 101 of The United Nations Convention on the Law of the Sea (UNCLOS). The boxes are as follows:
- Any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
a. on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
b. against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
- Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; and,
- Any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).
I will say that the idea of “private ends” within this UNCLOS definition of piracy is at best murky under international law and there is hot debate about if this should be read broadly or very narrow. This article will take the broader path and go with the idea that it represents private interests which can at times include political actions akin to insurgency.
The Funato Clan meets the piracy requirements laid out in Article 101 pretty easily. First, the Funato Clan regularly has its ships attack Land of Water’s ships, private trading companies’ ships, and has attacked Land of Water’s air vessels. These attacks are for the private gain of the Funato Clan as they seek to harm the Land of Water’s economy and to capture ships containing stored goods. Further, these attacks occur on the high seas outside of the jurisdiction of the Land of Water. Lastly, the Funato Clan members were aware of their actions and voluntarily participated in the actions. They are pirates. But, have they become something more?
Evolution of Status
In Boruto we see the Funato Clan evolve from pirates to something even more dangerous – a non-state terrorist organization. How does this happen?
The Funato Clan initially kept its attacks to ships and planes on the high seas with the mission to collect goods to re-establish its organization and maintain its “fearsome” reputation within the Land of Water. However, this shifted when it began to target the Land of Water’s political leadership, other nation’s military members, and attacked small villages within the Land of Water. Further, the Funato Clan seeks to advance political messages via fear and wants to topple the Land of Water’s government by eliminating the Mizukage (equivalent to a Head of State). Lastly, the Funato Clan holds an island that belongs to the Land of Water and uses that as a base of operations. With the Funato Clan now being a non-state terrorist organization, and recognizing that they have taken direct action against the Land of Water, we have to ask…have they created a form of armed conflict under international law?
Under international humanitarian law (IHL), there are two forms of armed conflict – international armed conflict (IAC) and non-international armed conflict (NIAC). International armed conflict is where we have two sovereign states fight against each other (imagine Russia fighting Ukraine). NIAC is where a sovereign state fights a non-state actor (imagine the U.S. fighting the Taliban). But, at what level do we consider that a conflict is actually occurring? There is no bright line test that we can use to determine this threshold. Instead, practitioners look at the collection of facts to see if the state government due to the level of intensity has to use its armed forces to combat the non-state terrorist organization. Some of the factors practitioners consider are: number, duration, intensity of armed encounters, number of casualties, the kinds of weapons used in the fights, the types of units used in the fights, etc. Here, the Funato Clan has deployed multiple units against the Land of Water’s Mizukage, its private sector, and against multiple civilian villages.
The Funato Clan has used land forces, special forces (the unit used to break the Funato Clan leader out of his cell in prison), and armed naval vessels. The Funato Clan has killed many civilians and military individuals. Safe to say, that an armed conflict is occurring, specifically, a NIAC as the Funato Clan is a non-state terrorist organization fighting a sovereign state – the Land of Water.
When it comes to armed conflicts under IHL, the four Geneva Conventions and the two accompanying additional protocols come into play. However, NIACs do not get the same level of treatment as IACs and a much smaller portion of the Geneva Conventions apply…namely additional protocol two (APII). Here, APII sets the parameters on how the Land of Water can deal with the Funato Clan in terms of protections, targeting, etc. One of the central concerns is what classification would fall upon the Funato Clan during the NIAC because different classifications either provide certain protections and some negate most protections. The classification of members of non-state actors flips between combatants (they get all protections) and unprivileged belligerents (who get the bare minimum of protections) and the debate continues to rage. To be classified as a combatant there are four elements that the members have to meet: they need to carry arms openly, adhere to a chain of command, wear a symbol openly, and follow IHL rules. I would argue that the Funato Clan does not meet this threshold: namely, they fail the final prong as they have openly attacked civilians which is a direct violation of the Fourth Geneva Convention. Therefore, they are unprivileged belligerents who get minimal protections. The Land of Water must therefore hold the Funato Clan accountable for its violations of IHL. But how?
Accountability Measures
The Land of Water has two vehicles where they can hold the Funato Clan accountable: UNCLOS and the Geneva Conventions. First, universal jurisdiction under UNCLOS gives us the means to hold the Funato Clan accountable for their actions as pirates. Universal jurisdiction is the idea that any state can hold the organization, individual accountable because the action(s) committed violate a jus cogens norm, a norm that all states agree should not happen – here, piracy.
The Geneva Conventions allow us to hold them accountable as a non-state terrorist organization. Here, the Land of Water can directly hold them accountable in their national courts because the Funato Clan violated the Geneva Conventions when it attacked and killed civilians, when they attacked government facilities and leaders. The Funato Clan members as unprivileged belligerents in a NIAC do not get absolved for their actions and can and should be held liable to the fullest extent of the Land of Water’s justice system.
