February 2-9, 2012. For no phase of life, whether public or private, whether in business or in the home, whether one is working on what concerns oneself

THE JUST WAR TRADITIONFebruary 2-9, 2012

MARCUS TULLIUS CICERO(ROMAN, 106 BC - 43 BC)

DE OFFICIIS, 1.2 (WALTER MILLER TRANSLATION)

For no phase of life, whether public or private, whether in business or in the home, whether one is working on what concerns oneself alone or dealing with another, can be without its moral duty; on the discharge of such duties depends all that is morally right, and on their neglect all that is morally wrong in life.


For, without any conflict with Nature's laws, it is granted that everybody may prefer to secure for himself rather than for his neighbour what is essential for the conduct of life; but Nature's laws do forbid us to increase our means, wealth, and resources by despoiling others.


…it is sufficient that the aggressor should be brought to repent of his wrong-doing, in order that he may not repeat the offence and that others may be deterred from doing wrong.


Then, too, in the case of a state in its external relations, the rights of war must be strictly observed. For since there are two ways of settling a dispute: first, by discussion; second, by physical force; and since the former is characteristic of man, the latter of the brute, we must resort to force only in case we may not avail ourselves of discussion.


Then, too, in the case of a state in its external relations, the rights of war must be strictly observed. For since there are two ways of settling a dispute: first, by discussion; second, by physical force; and since the former is characteristic of man, the latter of the brute, we must resort to force only in case we may not avail ourselves of discussion.


The only excuse, therefore, for going to war is that we may live in peace unharmed; and when the victory is won, we should spare those who have not been blood-thirsty and barbarous in their warfare. For instance, our forefathers actually admitted to full rights of citizenship the Tusculans, Aequians, Volscians, Sabines, and Hernicians, but they razed Carthage and Numantia to the ground.






Not only must we show consideration for those whom we have conquered by force of arms but we must also ensure protection to those who lay down their arms and throw themselves upon the mercy of our generals, even though the battering-ram has hammered at their walls. And among our countrymen justice has been observed so conscientiously in this direction, that those who have given promise of protection to states or nations subdued in war become, after the custom of our forefathers, the patrons of those states.


Not only must we show consideration for those whom we have conquered by force of arms but we must also ensure protection to those who lay down their arms and throw themselves upon the mercy of our generals, even though the battering-ram has hammered at their walls. And among our countrymen justice has been observed so conscientiously in this direction, that those who have given promise of protection to states or nations subdued in war become, after the custom of our forefathers, the patrons of those states.

MONTY PYTHONLIFE OF BRIAN

http://www.youtube.com/watch?v=hSELOCMmw4A



MONTY PYTHONLIFE OF BRIAN

All right, but apart from the sanitation, the medicine, education, wine, public order, irrigation, roads, a fresh water system, and public health, what have the Romans ever done for us?


As for war, humane laws touching it are drawn up in the fetial code of the Roman People under all the guarantees of religion; and from this it may be gathered that no war is just, unless it is entered upon after an official demand for satisfaction has been submitted or warning has been given and a formal declaration made.


As for war, humane laws touching it are drawn up in the fetial code of the Roman People under all the guarantees of religion; and from this it may be gathered that no war is just, unless it is entered upon after an official demand for satisfaction has been submitted or warning has been given and a formal declaration made.


There is extant, too, a letter of the elder Marcus Cato to his son Marcus, in which he writes that he has heard that the youth has been discharged by the consul, when he was serving in Macedonia in the war with Perseus. He warns him, therefore, to be careful not to go into battle; for, he says, the man who is not legally a soldier has no right to be fighting the foe.


There is extant, too, a letter of the elder Marcus Cato to his son Marcus, in which he writes that he has heard that the youth has been discharged by the consul, when he was serving in Macedonia in the war with Perseus. He warns him, therefore, to be careful not to go into battle; for, he says, the man who is not legally a soldier has no right to be fighting the foe.

ST. AUGUSTINE OF HIPPO(354-430 AD)

LETTER TO COUNT BONIFACE (418)

Do not think that it is impossible for any one to please God while engaged in active military service.…“[E]very one,” as the apostle says, “has his proper gift of God, one after this manner, and another after that.”…. Peace should be the object of your desire; war should be waged only as a necessity, and waged only that God may by it deliver men from the necessity and preserve them in peace. For peace is not sought in order to the kindling of war, but war is waged in order that peace may be obtained.

CONTRA FAUSTUM (C. 400)

What is the evil in war? Is it the death of some who will soon die in any case, that others may live in peaceful subjection? This is merely cowardly dislike, not any religious feeling. The real evils in war are love of violence, revengeful cruelty, fierce and implacable enmity, wild resistance, and the lust of power, and such like; and it is generally to punish these things, when force is required to inflict the punishment, that, in obedience to God or some lawful authority, good men undertake wars.

CONTRA FAUSTUM (C. 400)

What is the evil in war? Is it the death of some who will soon die in any case, that others may live in peaceful subjection? This is merely cowardly dislike, not any religious feeling. The real evils in war are love of violence, revengeful cruelty, fierce and implacable enmity, wild resistance, and the lust of power, and such like; and it is generally to punish these things, when force is required to inflict the punishment, that, in obedience to God or some lawful authority, good men undertake wars.

ST. THOMAS AQUINAS(ITALIAN, 1225-1274)

SUMMA THEOLOGICA, II-II, 40, I

http://www.newadvent.org/summa/3040.htm#article1

http://www.newadvent.org/summa/3040.htm


SUMMA THEOLOGICA, II-II, 64, VII

http://www.newadvent.org/summa/3064.htm#article7



FRANCISCO DE VITORIA(SPANISH, 1492-1546)

VITORIA, DE INDIS & DE JURE BELLI (1532)

ON THE LAWS OF WAR

10. Third question: What may be a reason and cause of just war? It is particularly necessary to ask this in connection with the case of the Indian aborigines, which is now before us. Here my first proposition is: Difference of religion is not a cause of just war. This was shown at length in the preceding Relectio, when we demolished the fourth alleged title for taking possession of the Indians, namely, their refusal to accept Christianity. And it is the opinion of St. Thomas (Secunda Secundae, qu. 66, art. 8), and the common opinion of the doctors — indeed, I know of no one of the opposite way of thinking.

ON THE LAWS OF WAR

11. Second proposition: Extension of empire is not a just cause of war. This is too well known to need proof, for otherwise each of the two belligerents might have an equally just cause and so both would be innocent. This in its turn would involve the consequence that it would not be lawful to kill them and so imply a contradiction, because it would be a just war.

12. Third proposition: Neither the personal glory of the prince nor any other advantage to him is a just cause of war. This, too. is notorious. For a prince ought to subordinate both peace and war to the common weal of his State and not spend public revenues in quest of his own glory or gain, much less expose his subjects to danger on that account.

ON THE LAWS OF WAR

13. Fourth proposition: There is a single and only just cause for commencing a war, namely, a wrong received. The proof of this rests in the first place on the authority of St. Augustine (Liber 83 Quaestionum* "Those wars are described as just wars," etc., as above), and it is the conclusion arrived at by St. Thomas (Secunda Secundae, qu. 40, art. 1) and the opinion of all the doctors. Also, an offensive war is for the purpose of avenging a wrong and of taking measures against an enemy, as said above. But there can be no vengeance where there is no preceding fault and wrong.

ON THE LAWS OF WAR

14. Fifth proposition: Not every kind and degree of wrong can suffice for commencing a war. The proof of this is that not even upon one's own fellow-countrymen is it lawful for every offense to exact atrocious punishments, such as death or banishment or confiscation of property. As, then, the evils inflicted in war are all of a severe and atrocious character, such as slaughter and fire and devastation, it is not lawful for slight wrongs to pursue the authors of the wrongs with war, seeing that the degree of the punishment ought to correspond to the measure of the offence (Deuteronomy, ch. 25).

ON THE LAWS OF WAR

2. Second question: In whose hands lies the authority to declare and to make war?

3. Herein let my first proposition be: Any one, even a private person, can accept and wage a defensive war. This is shown by the fact that force may be repelled by force….Hence any one can make this kind of war, without authority from any one else, for the defense not only of his person, but also of his property and goods.

ON THE LAWS OF WAR

4. A doubt, however, arises in connection with this proposition, namely, whether one who is attacked by a robber or enemy can strike his assailant back if escape by flight is possible. The Archbishop, indeed, says, No; this being in excess of the limits of blameless self-defense, since everyone is bound in the exercise of self-defense to do as little harm as possible to his assailant. If, then, resistance would involve the death of or grievous bodily harm to the assailant, but escape by flight is a possible thing, the latter course ought to be adopted.

ON THE LAWS OF WAR

20. [T]here is a doubtful point in connection with the justice of a war, whether it be enough for a just war that the prince believes himself to have a just cause. On this point let my first proposition be: This belief is not always enough. And for proof I rely, first, on the fact that in some matters of less moment it is not enough either for a prince or for private persons to believe that they are acting justly. This is notorious, for their error may be vincible and deliberate, and the opinion of the individual is not enough to render an act good, but it must come up to the standard of a wise man's judgment, as appears from Ethics, bk. 2.

ON THE LAWS OF WAR

21. Second proposition: It is essential for a just war that an exceedingly careful examination be made of the justice and causes of the war and that the reasons of those who on grounds of equity oppose it be listened to. For (as the comic poet says) "A wise man must make trial of everything by words before resorting to force," and he ought to consult the good and wise and those who speak with freedom and without anger or bitterness or greed, seeing that (as Sallust says) "where these vices hold sway, truth is not easily distinguished."

ON THE LAWS OF WAR

23. [S]ubjects whose conscience is against the justice of a war may not engage in it whether they be right or wrong. This is clear, for "whatever is not of faith is sin" (Romans, ch. 14).

ON THE LAWS OF WAR

32. The fourth doubt is: Whether a war can be just on both sides. The following is my answer: First proposition: Apart from ignorance the case clearly can not occur, for if the right and justice of each side be certain, it is unlawful to fight against it, either in offense or in defense. Second proposition: Assuming a demonstrable ignorance either of fact or of law, it may be that on the side where true justice is the war is just of itself, while on the other side the war is just in the sense of being excused from sin by reason of good faith, because invincible ignorance is a complete excuse. Also, on the side of the subjects at any rate, this may often occur; for even if we assume that a prince who is carrying on an unjust war knows about its injustice, still (as has been said) subjects may in good faith follow their prince, and in this way the subjects on both sides may be doing what is lawful when they fight.

ON THE LAWS OF WAR

35. The deliberate slaughter of the innocent is never lawful in itself. This is proved, firstly, by Exodus, ch. 23: "The innocent and righteous slay thou not." Secondly, the basis of a just war is a wrong done, as has been shown above. But wrong is not done by an innocent person. Therefore war may not be employed against him. Thirdly, it is not lawful within a State to punish the innocent for the wrongdoing of the guilty. Therefore this is not lawful among enemies.

ON THE LAWS OF WAR

37. Second proposition: Sometimes it is right, in virtue of collateral circumstances, to slay the innocent even knowingly, as when a fortress or city is stormed in a just war, although it is known that there are a number of innocent people in it and although cannon and other engines of war can not be discharged or fire applied to buildings without destroying innocent together with guilty. The proof is that war could not otherwise be waged against even the guilty and the justice of belligerents would be balked. In the same way, conversely, if a town be wrongfully besieged and rightfully defended, it is lawful to fire cannon-shot and other missiles on the besiegers and into the hostile camp, even though we assume that there are some children and innocent people there.

ON THE LAWS OF WAR

Great attention, however, must be paid to the point already taken, namely, the obligation to see that greater evils do not arise out of the war than the war would avert. For if little effect upon the ultimate issue of the war is to be expected from the storming of a fortress or fortified town wherein are many innocent folk, it would not be right, for the purpose of assailing a few guilty, to slay the many innocent by use of fire or engines of war or other means likely to overwhelm indifferently both innocent and guilty. In sum, it is never right to slay the guiltless, even as an indirect and unintended result, except when there is no other means of carrying on the operations of a just war, according to the passage (St.Matthew, ch. 13) "Let the tares grow, lest while ye gather up the tares ye root up also the wheat with them."

ON THE LAWS OF WAR

49. Sixth doubt: Whether it is lawful to slay those who have surrendered or been captured, supposing them also to have been guilty. My answer is that, speaking absolutely, there is nothing to prevent the killing of those who have surrendered or been captured in a just war so long as abstract equity is observed. Many of the rules of war have, however, been fashioned by the law of nations, and it seems to be received in the use and custom of war that captives, after victory has been won (unless perchance they have been routed) and all danger is over, are not to be killed, and the law of nations must be respected, as is the wont among good people.

ON THE LAWS OF WAR

When victory has been won and the war is over, the victory should be utilized with moderation and Christian humility, and the victor ought to deem that he is sitting as judge between two States, the one which has been wronged and the one which has done the wrong, so that it will be as judge and not as accuser that he will deliver the judgment whereby the injured state can obtain satisfaction, and this, so far as possible should involve the offending state in the least degree of calamity and misfortune, the offending individuals being chastised within lawful limits

MICHAEL WALZER (AMERICAN, B. 1935)

WALZER, JUST AND UNJUST WARS (1977)

JUST AND UNJUST WARS, CH. 2

[The moral reality of war] reflects our understanding of states and soldiers, the protagonists of war, and of combat, its central experience. The terms of that understanding are my immediate subject matter. They are simultaneously the historical product of and the necessary condition for the critical judgments that we make every day; they fix the nature of war as a moral (and an immoral) enterprise.


jus ad bellum

jus in bello


jus ad bellumjustice in the resort to war

jus in bello


jus ad bellumjustice in the resort to war

jus in bellojustice in the means of war


In contemporary international law, their crime is called aggression….we can understand it initially as the exercise of tyrannical power, first over their own people and then, through the mediation of the opposing state’s recruitment and conscription offices, over the people they have attacked….Here is the ultimate tyranny: those who resist aggression are forced to imitate, and perhaps even to exceed, the brutality of the aggressor.


[T]he moral reality of war can be summed up in this way: when soldiers fight freely, choosing one another as enemies and designing their own battles, their war is not a crime; when they fight without freedom, their war is not their crime. In both cases, military conduct is governed by rules; but in the first the rules rest on mutuality and consent, in the second on a shared servitude.


The case of Erwin Rommel


1) There exists an international society with independent states as members.

2) That society has a law establishing the rights of territorial integrity and political sovereignty of members.

3) Use or threat of force constitutes aggression and is a crime.

4) Aggression justifies resort to war for self-defense or law enforcement (and any state can carry out the law enforcement action).

5) Nothing but aggression can justify war.6) Aggressors, after being repulsed, can also be punished.


The general formula must go something like this: states may use military force in the face of threats of war, whenever the failure to do so would seriously risk their territorial integrity or political independence….[A] state under threat is like an individual hunted by an enemy who has announced his intention of killing or injuring him. Surely such a person may surprise his hunter, if he is able to do so.


Conditions for sufficient threat:

-a manifest intent to injure

-a degree of active preparation that makes that intent a positive danger

-a general situation in which waiting, or doing anything other than fighting, greatly magnifies the risk


[T]he ban on boundary crossings is subject to unilateral suspension, specifically with reference to three sorts of cases where it does not seem to serve the purposes for which it was established:

-when a particular set of boundaries clearly contains two or more political communities, one of which is already engaged in a large-scale military struggle for independence; that is, when what is at issue is secession or “national liberation”

-when the boundaries have already been crossed by the armies of a foreign power, even if the crossing has been called for by one of the parties in a civil war, that is, when what is at issue is counterintervention; and

-when the violation of human rights within a set of boundaries is so terrible that it makes talk of community…seem cynical or irrelevant, that is, in cases of enslavement or massacre


Humanitarian intervention is justified when it is a response (with reasonable expectation of success) to acts “that shock the moral conscience of mankind.”


Military Necessity:harmful acts should be limited to those that are necessary for achieving victory (or, anyway, those that make victory more likely than alternative means would).


Proportionality:means of achieving military objectives should be forgone when they cause harm that is out of proportion to the importance of the military objective.


No means mala in se:Combatants must not use means that are intrinsically evil—evil in themselves.


Discrimination: violence may be done intentionally only to legitimate targets


Discrimination: violence may be done intentionally only to persons “engaged in harm”


Doctrine of Double Effect:It is permissible to perform an act likely have evil consequences (e.g. killing noncombatants) if and only if:

1) The act is good in itself or at least indifferent (e.g. it is a legitimate act of war).

2) The direct effect is morally acceptable (e.g. the destruction of military supplies or the killing of enemy soldiers).

3) The intention of the actor is good—that is, he aims only at the acceptable effect; the evil effect is not one of his ends, nor is it a means to his ends.

4) The good effect is sufficiently good to compensate for allowing the evil effect (proportionality).


Walzer’s Doctrine of Double Intention:It is permissible to perform an act likely have evil consequences (e.g. killing noncombatants) if and only if:

1) The act is good in itself or at least indifferent (e.g. it is a legitimate act of war).

2) The direct effect is morally acceptable (e.g. the destruction of military supplies or the killing of enemy soldiers).

3*) The intention of the actor is good, that is, he aims narrowly at the acceptable effect; the evil effect is not one of this ends, nor is it a means to his ends, and, aware of the evil involved, he seeks to minimize it, accepting costs to himself.

4) The good effect is sufficiently good to compensate for allowing the evil effect (proportionality).

JUS AD BELLUM

Just cause: There must be a justifying reason for going to war.

JUS AD BELLUM

Just cause: There must be a justifying reason for going to war.

Last resort: All feasible means short of war have been

exhausted. (Not that they have all been tried, but sufficient effort has been made to rule out other means as infeasible.)

JUS AD BELLUM

Just cause: There must be a justifying reason for going to war. Last resort: All feasible means short of war have been


Probability of success: Violent campaigns that are obviously

hopeless are not permissible. There must be some reasonable chance of success (though how high the probability should be is an open question).

JUS AD BELLUM

Just cause: There must be a justifying reason for going to war. Last resort: All feasible means short of war have been


Probability of success: Violent campaigns that are obviously

hopeless are not permissible. There must be some reasonable chance of success (though how high the probability should be is an open question).

Proportionality: The goods secured (or evils eliminated) through

the war must outweigh the evils produced by resorting to war.

JUS AD BELLUMJust cause: There must be a justifying reason for going to war. Last resort: All feasible means short of war have been exhausted. (Not

that they have all been tried, but sufficient effort has been made to rule out other means as infeasible.)

Probability of success: Violent campaigns that are obviously hopeless are

not permissible. There must be some reasonable chance of success (though how high the probability should be is an open question).

Proportionality: The goods secured (or evils eliminated) through the war

must outweigh the evils produced by resorting to war. Public declaration by proper authority: Only a legitimate political authority

can justly take a state to war. And the war must be publicly declared.

JUS AD BELLUMJust cause: There must be a justifying reason for going to war. Last resort: All feasible means short of war have been exhausted. (Not that they

have all been tried, but sufficient effort has been made to rule out other means as infeasible.)

Probability of success: Violent campaigns that are obviously hopeless are not

permissible. There must be some reasonable chance of success (though how high the probability should be is an open question).

Proportionality: The goods secured (or evils eliminated) through the war must

outweigh the evils produced by resorting to war. Public declaration by proper authority: Only a legitimate political authority can

justly take a state to war. And the war must be publicly declared. Right intention: The state (or its rulers) must not only have a just cause, but

resort to war for that cause. Having a just case does not excuse going to war out of ulterior (unjust) motives, such as appropriation of lands or resources.

JUS IN BELLO

Military necessity: Combatants should never engage in harmful acts that do not serve a legitimate military objective—one that makes victory more likely than the alternatives.

JUS IN BELLO


Proportionality: Means of achieving military

objectives should be forgone when they cause harm that is out of proportion to the importance of the military objective.

JUS IN BELLO


Proportionality: Means of achieving military objectives should be

forgone when they cause harm that is out of proportion to the importance of the military objective.

Discrimination: Combatants may intentionally do violence only to

legitimate targets. However, harm to illegitimate targets may permissibly be foreseen, in accordance with the DDE or some principle in the neighborhood.

JUS IN BELLO


Proportionality: Means of achieving military objectives should be forgone

when they cause harm that is out of proportion to the importance of the military objective.

Discrimination: Combatants may intentionally do violence only to legitimate

targets. However, harm to illegitimate targets may permissibly be foreseen, in accordance with the DDE or some principle in the neighborhood.

Benevolent quarantine: Combatants who have been captured or who have

surrendered must not be killed, starved, raped, tortured, experimented upon, etc. They are to be treated humanely and exchanged for one’s own POWs at the cessation of the conflict.

JUS IN BELLO


Proportionality: Means of achieving military objectives should be forgone when

they cause harm that is out of proportion to the importance of the military objective.

Discrimination: Combatants may intentionally do violence only to legitimate

targets. However, harm to illegitimate targets may permissibly be foreseen, in accordance with the DDE or some principle in the neighborhood.

Benevolent quarantine: Combatants who have been captured or who have

surrendered must not be killed, starved, raped, tortured, experimented upon, etc. They are to be treated humanely and exchanged for one’s own POWs at the cessation of the conflict.

No means mala in se: Combatants must not use means that are evil in themselves

—rape campaigns, genocide, poisoning wells, disguising soldiers as Red Cross medics, forcing captured soldiers to fight against their own side, using weapons whose effects cannot be controlled (e.g. biological agents), etc.

JUS IN BELLO


Proportionality: Means of achieving military objectives should be forgone when they cause

harm that is out of proportion to the importance of the military objective. Discrimination: Combatants may intentionally do violence only to legitimate targets.

However, harm to illegitimate targets may permissibly be foreseen, in accordance with the DDE or some principle in the neighborhood.

Benevolent quarantine: Combatants who have been captured or who have surrendered

must not be killed, starved, raped, tortured, experimented upon, etc. They are to be treated humanely and exchanged for one’s own POWs at the cessation of the conflict.

No means mala in se: Combatants must not use means that are evil in themselves—rape

campaigns, genocide, poisoning wells, disguising soldiers as Red Cross medics, forcing captured soldiers to fight against their own side, using weapons whose effects cannot be controlled (e.g. biological agents), etc.

No reprisals: No violation of jus in bello conditions in retaliation for an opponent’s violations

of jus in bello.

TWO PROPORTIONALITY PRINCIPLES

ad bellum proportionality: The goods secured (or evils eliminated) through the war must outweigh the evils produced by resorting to war.

in bello proportionality: Means of achieving military objectives should be forgone when they cause harm that is out of proportion to the importance of the military objective.

JUST WAR CRITERIA

jus ad bellum-just cause-last resort-probability of success-proportionality-declaration by proper

authority-right intention

jus in bello-military necessity-proportionality-discrimination-benevolent

quarantine-no means mala in se-no reprisals

JUS IN BELLO WITHOUT JUS AD BELLUM?

Discrimination: violence may be done intentionally only to legitimate targets

JUS IN BELLO WITHOUT JUS AD BELLUM?

in bello proportionality: Means of achieving military objectives should be forgone when they cause harm that is out of proportion to the importance of the military objective.

Documents

February 2-9, 2012. For no phase of life, whether public or private, whether in business or in the home, whether one is working on what concerns oneself