War

WAR. - I. NOTIONS. - There are many definitions of war. Their extreme variety depends either on the influence of particular ideologies, or on the too broad a sense attributed to the term, so as to include forms of struggle that are not properly war, or on the choice of some evaluative element of the fact, which then restricts its scope of application. The first defect is incurred by those who conceive of war as a pure affirmation of power; the second, for example, was fallen into by Grotius, followed by Vattel, who included civil strife in the concept of war; the third, along with others, was yielded to by Taparelli, defining it as a "clash of equal societies to uphold the law by force," where the emphasis on the end of defending the law would prevent aggressions that violate it from being considered as war.

The definition, deduced from a careful analysis of the fact, must be able to embrace only and all the uses of force, which correspond to certain common elements, and must prescind, as Grotius already observed, from any evaluative judgment, since wars are both those waged in defense of the law and those that trample upon it. Bearing this requirement in mind, war may be defined as: a state of armed struggle between sovereign peoples, who intend to resolve by this means questions pending between them, imposing their will upon the adversary.

War, in the first place, does not consist in a single act of hostility, which closes and exhausts itself in itself, nor in episodic clashes, but properly in a state or condition, which continues uninterruptedly from the first beginning of hostilities until the conclusion of peace, and comprises the acts that are carried out in this period: passive resistance, active campaigns, truces, armistices, and it combines them all into a single relationship, commonly called a state of belligerency. Hostilities are not in themselves war, but become war when they are a consequence of such a state. Indeed, forms of violent pressure and hostile acts are recognized by practice and by international law, which do not produce the state of belligerency and for that very reason are not considered as war. Let reprisal in time of peace serve as an example.

Balladore Pallieri observes that, in order to determine concretely whether a hostile act is war or not, one must examine the will of the State that produces it, that is, whether such an act is carried out with the animus bellandi. From the objective aspect this does not appear necessary, since, as it is neither indispensable nor in itself required by international law that the State declare its will in an express manner, if the coercive action is not accompanied by a contrary declaration, the employment of force carries with it implicitly the animus bellandi and produces the state of belligerency. Once the will of a State to resolve a given question by force has been made manifest in an explicit or implicit manner, the state of war arises, which causes the immediate suspension of certain rules of conduct that States are obliged to observe in time of peace, permitting a series of actions previously forbidden by those same rules, and at the same time brings into force others, destined to regulate the new condition that has come to be created between the belligerent parties.

War properly so called is, in the second place, that fought between sovereign peoples, who, as equal and independent subjects of the international community, enjoy autonomy in establishing the lines of their own internal and external conduct, not having to resort to a higher authority. Suárez already wrote in his time, and all modern authors agree with him, that an external combat, contrary to exterior peace, is then said to be properly war when it takes place between two sovereigns or two States: in other cases it is either sedition, if it occurs between the authority and the citizens or between the factions of the same nation, or it is a duel and a brawl if it happens between private persons. It is only to be noted in this regard that, according to the opinion of more than one publicist, if a sedition should acquire such extension and force as to divide a people into two parts militarily organized with their own government, the elements would be present for the arising of the state of war and for considering the two factions as belligerents.

Finally, since war is a human act, emitted by the community through its representatives, in order to exhaust its concept, mention must be made of some end to which it remains directed. This cannot consist in anything other than the goal that every belligerent, in any supposition, proposes to reach, prescinding from any moral and juridical evaluation of it. Now it is beyond doubt that every war is undertaken to resolve some question that could not or would not be resolved by peaceful means, so as to impose by force upon the adversary the solution that to the belligerent seems most in conformity with its right or its interest. The nature of the question does not affect the essence of the fact, which will be a war, whether it pursues the defense of the law or proposes the triumph of a pure interest.

The elements described distinguish war from other similar uses of force with which a State intends to exercise pressure on the will of another State, in order to induce it to yield more easily to its demands. Such are reprisals in time of peace, the temporary occupation of part of a territory, naval and land blockade, and embargo.

II. DIVISION

War is usually distinguished into defensive and offensive, by the application of a purely external criterion. It is called defensive when it serves to repel an aggression, offensive when the adversary is attacked. The same external criterion of the beginning of hostilities serves to establish who the aggressor is. The same distinction could be deduced by applying a moral or juridical criterion evaluating the fact. In this second case, a defensive war will be one waged in defense of a right, an offensive one that which violates it. But since every just war has as its purpose the defense of a right, either presently threatened or already violated, defensive war and just war would come to coincide, so that only the unjust one would be offensive; which for practical purposes would complicate the question of the definition of the aggressor, because of the difficulty of proceeding to an evaluation of the motives that counseled recourse to arms. Moreover, the adoption of the moral criterion presupposes that the question of just and unjust war has already been resolved, a question far from settled among students of international law.

For this reason mention is made here, provisionally and almost by way of history, of the other distinction between just and unjust war, common to all treatise writers, from Grotius down to Vattel, to cite only two of the better-known names, before the triumph of legal positivism. Just is the war that has as its purpose the defense of a grave and certain right, unjust that which violates it. The exactness of this distinction, constantly admitted by Catholic tradition down to our own days, will emerge from what will be set forth concerning the morality of war, the central point of disagreement with the philosophical and juridical speculation of contemporary thought.

III. ERRORS

There are various philosophical currents, or currents that call themselves such, which, although not always in agreement on principles, nevertheless agree in declaring war either always lawful, as the sole source of law, or at least not assessable by moral and juridical criteria. According to Hobbes's naturalistic conception, war would be the normal condition of humanity, governed by the law of the bellum omnium contra omnes. Sociological conceptions have accepted this fatalistic framing. The history of humanity would evolve according to a direction necessarily established by the laws of the cosmos and of life, among which emerges that of the struggle for existence, of which war among peoples would be an inevitable manifestation. Political Darwinism came to reinforce these conceptual positions, rigidly applying to relations among peoples the principle of the survival of the strongest. Peoples would be made to fight one another, so that the strongest may assert its own right to life through victory over the weaker. Every people naturally seeks the innimus, with which to measure itself, and this once again by virtue of an inexorable law that dominates all of life.

Political philosophy for its part has not lagged behind. Machiavelli, Nietzsche, Treitschke and other worshippers of reason of state or supporters of the theory of the superman, translated into the theory of the superrace or the supernation, have sung hymns to force as the sole foundation of relations among States, which should be conceived as relations of pure power. The end of every political body would be the affirmation of its power and the expansion of its own dominion, for which the use of force is necessary. These assessments of war are shared both by currents with a materialistic basis and by those with an idealistic content. According to Hegel, war is as necessary to peoples as the blowing of the winds is necessary to the sea so that it does not fall into putrefaction.

The militarists, such as von Bernhardi, and the realist politicians, such as Bismarck, not to mention the more recent totalitarian regimes, have made this divinization of force their own, in the glorification of which they have even passed over into lyricism, presenting war as the promoter of the manly virtues of peoples, the stimulator of initiatives fruitful for the progress of humanity and the fosterer of civilization. War, it has been said, stands to peoples as maternity to woman, a source of life and of natural and necessary vigor.

On another plane moves J. De Maistre when he boldly proclaims war as a divine thing. At the basis of his thought lies the erroneous concept that all of life is dominated by the law of destruction until the attainment of the silence of death. Man would obey this divine law when he descends onto the fields of battle and destroys himself with an enthusiastic fury, without understanding what he is doing.

The theories just mentioned have in common a blind fatalistic naturalism, deduced from mechanistic, biological and monistic conceptions of the universe, with the exception of De Maistre, who relies upon a providential fatalism, and the consequent denial of any possibility of a moral assessment of war.

Legal positivism agrees in this conclusion. According to the majority of contemporary internationalists, war in the international order is always and in any supposition a legal licit, to which the State may resort for any reason that seems to it opportune, whether to defend a right of its own or to secure an interest of its own. International law, as Strupp and Anzilotti maintained, and more recently Balladore Pallieri, cannot say whether the State may or may not wage war, but only regulate hostilities once these have begun and a state of belligerency has been produced. The distinction between just and unjust war consequently remains outside the law, and could at most be drawn with the metajuridical criteria of an abstract justice.

The reason for this position is to be sought in the principle according to which no other law exists that can regulate the conduct of States, save that positive law laid down by their will or consecrated by custom, whence then the consequence that, when such law dictates no explicit norm, States enjoy perfect freedom of action. War would fall within this sphere of freedom not contemplated by law, nor in any way regulated by it, and therefore in the international order would always be a legal licit. It must nevertheless be added that against this theory oppositions have arisen within the juridical field itself. The Vienna school of Verdross, for example, has returned to upholding the distinction between just and unjust war on the basis of certain positive norms implicit in the international order, and the Italian institutionalist theory could return to it much better, relying on the principles immanent in the international society that it upholds.

On the opposite side of the barricade stand the theories that condemn war as an always illicit means. Humanitarianism, inspired by a certain vaporous and abstract cult of humanity, would wish all national, political and religious divisions, the eternal source of conflicts, to be abolished, in order to secure for peoples a perpetual peace. Let the Kantian dream of perpetual peace be recalled. The pacifists have joined this crusade, to which some Catholic currents have also given their consent. Relying on the Gospel, which commands non-resistance to evil, condemns the use of the sword, inculcates the precept of charity even toward enemies and counsels meekness, these currents have concluded that war is always immoral, because it would oppose the essence of the Christian message.

Some Catholic theologian or sociologist has made the condemnation of war, as a means by now become immoral, spring from another principle, namely from the disproportion that today would exist between the immense evils that war produces and the defense of law; whence it would follow that a procedure, previously licit, with circumstances changed, must be held to be essentially illicit. It has even been maintained by someone that, for the reasons stated and for the principle of international charity, a State unjustly attacked might have the obligation to sacrifice itself for the good of the collectivity.

IV. CATHOLIC DOCTRINE

The exposition of Catholic doctrine will by itself suffice to show the error of all these attitudes.

The tradition of Catholic thought has always regarded armed conflict among peoples as a deplorable scourge, a calamity that falls upon them, throws their civil life into turmoil, piling up material and moral ruins, sowing slaughter and human victims along its bloody path. No ideological current has had as vivid a sense of the tragedy of war as the Catholic one, and none has labored as much as it to mitigate its effects, strengthening in peoples the sentiment of universal brotherhood, of unity and of love. There remain in history, as stages of a long journey toward forms of a higher civilization, the efforts made by Christianity to make conflicts less harmful, to soften customs and to inspire sentiments of humanity in belligerents, with the truces of God, for example, established in medieval society, and the other rules on the treatment of prisoners and on the usages of war, from which the formation of today's international law took its start.

Nevertheless the Christian conception has kept equally far from the reef of fatalism and from that of a humanitarianism and pacifism divorced from reality. It is a fundamental principle of it that war is not a necessary effect of cosmic, physical, biological or economic forces, but the work of man, a conscious, free and responsible being, whose actions are not subject to any determinism of nature, because the spirit dominates it and takes its stand in full autonomy from its laws. Public society is wholly leavened by this spiritual ferment, being made up of men, and therefore its life too unfolds on the higher plane of freedom, where no fatalism reigns. War, like all other collective determinations, depends on the human will, which, in full awareness of the ends it pursues and the means it adopts, chooses and produces it, although external causes may influence it. It is, therefore, like every human act, a moral act, which is subject to certain principles and laws of action.

At the basis of the Catholic conception of war there undoubtedly lies the idea of original sin, of which war is a painful consequence. St. Augustine, in a special way, insisted on this concept, but not in order to deduce from it a fatalism in the manner of De Maistre. Original sin explains why man yields to the instinct of violence, to the passions of pride and power, but it does not destroy human freedom and responsibility, leaving both man and society in mastery of their acts. War, therefore, despite original sin, remains an act freely posited and evaluable according to moral principles. In the higher plan of Providence, it is an evil, but an evil that man produces through his voluntary choice.

No conception is more human than the Christian one, and yet its most genuine supporters have not let themselves be deluded by exaggerated sentimentalism. Peace is a great good, indeed the greatest earthly good of humanity, to whose preservation social life must be ordered. It is not, however, a good to be maintained at any cost with the sacrifice of justice and of right, which must rather be protected and defended. The use of force and war, as St. Augustine taught, have as their goal peace, the order of the civil community, and can be employed against its disturbers. Catholic doctrine is pacific but not pacifist, it is human not humanitarian.

This approval in principle of the use of force, to preserve or re-establish the order of peace in justice, is not contrary to the teachings of the Gospel. The Gospel is a code of life dictated for the sanctification of the individual, to whom are addressed the counsels of non-resistance to evil, of renunciation of the use of the sword, of charity toward enemies, of turning the other cheek to one who strikes him, in view of an otherworldly reward, which will recompense his meekness. The same precepts and counsels cannot be transferred to collective life, without there following from it the impunity of the wicked and social disintegration. The State, moreover, has no future life, where it will be able to receive compensation for its renunciations, but its mission unfolds and closes on earth, concerns temporal and not eternal goods, the well-being of the present life and not future happiness, at least not directly. It is therefore its duty to protect itself and the order, in respect for all rights, with the appropriate means, including war, if this is necessary.

This position is, not to say contradicted, rather confirmed by the Gospel itself. Catholic theologians and moralists have raised the question whether war was contrary to the essence of the Christian message, and on the basis of St. Augustine they have demonstrated that such contrariety does not exist. Not only in the Old Testament are certain warlike enterprises praised, such as those of the Maccabean brothers, but also in the New Testament St. John the Baptist does not impose on the soldiers, who run to him to receive the Baptism of penance, the obligation to abandon their trade. In the same manner Jesus Christ behaved with the centurion, whose piety was praised to him. If the military profession is not bad in itself, neither can the use of arms for defense be judged intrinsically bad.

This has been the Christian attitude from the earliest origins. It has by now been demonstrated by the studies of Batiffol, Vacandard and Vanderpol that Christians served in the armies of the pagan emperors, finding no incompatibility between their trade and the faith they professed. When the Fathers of the Church advise them to abandon it, they do not rely on motives drawn from evangelical preaching, but solely on the practical reason of the moral and religious dangers encountered in its exercise. Except for Lactantius, and to a somewhat reduced extent Origen and Tertullian, the other Fathers saw no incompatibility between the profession of arms and the profession of the Christian faith. To find an absolute condemnation of war, supported by motives of faith, one must wait for the innovators of the Protestant "reformation."

However, a somewhat clear formulation of Catholic doctrine on war is not found until St. Augustine. The importance of the principles he enunciated is such, in relation to later doctrinal elaboration, that it is worth fixing them. St. Augustine distinguishes between just and unjust war. Unjust wars, moved by greed for conquest and dominion, are brigandage on a grand scale and a great robbery. Just wars set as their goal the maintenance of peace, which is tranquillity in order, to which it is repugnant that the wicked remain unpunished and injustices unrepaired. War, therefore, is legitimate if it tends to repair injustices, to re-establish the order of peace, disturbed by the wrongs done to individuals, so that they may not have to be repeated. However, he adds, since war produces most grave evils, one must have recourse to it only in case of grave necessity, which occurs when the iniquity of the adversary compels the wise man to take up arms: "Iniquitas partis adversae iusta bella ingerit gerenda sapienti."

These ideas are concentrated in a celebrated text, which served as inspiration for all medieval speculation. "Iusta bella definiri solent," writes St. Augustine (In Heptat., VI, 10: PL 34, col. 781), "quae ulciscuntur iniurias, si qua gens vel civitas quae bello petenda est, vel vindicare neglexerit quod a suis improbe factum est, vel reddere quod per iniurias ablatum est."

The schema of Catholic doctrine was thus fixed forever by the pen of St. Augustine. On it the posterity would work — St. Thomas, who expounds it in systematic form, and particularly the theologians and moralists of the 16th century, among whom de Vitoria and Suárez stand out, who developed it into an organic body of doctrine that has remained almost unchanged down to our own days. This doctrine is summed up in a few brief propositions.

War, considered in itself, insofar as it is a use of force, is neither intrinsically good nor intrinsically evil, but indifferent. It becomes good or evil, just or unjust, according to the ends it sets out to achieve. Defensive war against an unjust aggressor is always lawful, because "vim vi repellere omnia iura permittunt": like individuals, so too peoples have from the order of natural justice the right of legitimate defense. In order for offensive war to be just, it must satisfy certain conditions. It must, in the first place, have as its motive and purpose the vindication of a right gravely violated or the reparation of a grave wrong suffered — the one and only reason that can legitimize recourse to the violence of war. All others — expansion of power, national pride, ambition for dominion, political interest, prevention of another's prosperity, irredentism, and so on — are morally and juridically invalid.

In the second place, war must be the last means to which the State resorts, the extreme attempt to save the right and avenge the offense, which can legitimately be adopted only when all peaceful avenues have been exhausted. Finally, its morality also requires a proportion between the evils that war customarily produces and the importance of the right that is intended to be defended. If it is foreseen that war will be harmful to the nation or, as de Vitoria adds, to the community of peoples, in such a way that the evils are not balanced by the importance of the right, prudence and justice require that it be avoided.

Once these principles are established, it remains to be seen what certainty the possession of the right that is intended to be defended by war must attain. With some exceptions, Catholic writers have been unanimous in holding that a doubtful or morally uncertain right cannot legitimately be defended by arms. For a war to be just, a morally certain and grave right is required. As long as the doubt persists, the State has the duty to try every means to remove it; and if it cannot succeed in this, it is obliged to abstain from any warlike violence, seeking with the opposing party a compromise solution. It is in this context that the concept of arbitration, susceptible of broad developments, makes its appearance in Suárez.

Catholic writers are likewise unanimous in condemning preventive war and in holding it impossible for a war to be objectively just on both sides, although they do not exclude such a possibility in the subjective sphere, insofar as it may happen that one who is objectively in the wrong mistakenly believes that the right is on his side. Catholic thought therefore excludes the application of probabilism to the grave affair of war. Animated by the cult of right and justice, it ultimately recognizes as legitimate only defensive war, in the sense that it must always tend either to the defense of a right presently threatened or to the defense of a right already violated.

It is now necessary to justify this position. Its first cornerstone consists in the consideration of force as a means indifferent in itself. The correctness of this assessment is deduced from the laws that guide human action. Man acts in a manner conformable to his rational nature when the motives of action are suggested to him by the intellect and freely accepted by the will. What moves man is always an internal principle, an evaluative judgment of the intellect, which presents an object as true and good, and an act of the will that loves and desires this good. From these inner sources springs the force that binds the will to duty, the moral obligation that imperiously dictates a norm necessary for human conduct.

Physical force, on the other hand, is an extrinsic principle, a violence that touches the organic part of man and not his spiritual faculties. Consequently it cannot be a human law, nor can this law generate it, and therefore it is reduced to a means that man can and must use according to the higher dictate of reason, from which alone the note of morality can derive for him. Only deterministic materialism or the no less deterministic idealist monism can fail to recognize the correctness of this reasoning. If war, then, is nothing other than a violence, it is at the same time also a means, which will acquire a moral note from the motives on which its use rests.

In internal civil life the use of force, except in the case of legitimate defense, is forbidden to the private individual, since the defense of right is entrusted to the organs of the supreme authority. It is not so in international society, where, because of the lack of a higher instance, this defense is entrusted by the natural law itself to individual States, which not only may repel unjust aggression but may also punish the violator of justice, compelling him by force to make reparation for the wrong inflicted, for the reintegration of the order of justice. It is a supreme exigency of associated life that the wicked not remain unpunished and that injustice be repaired; and since in a society of equals without a central authority such an office cannot be performed except by the one who has received the offense, the objective order of justice therefore invests him with the right to punish and to make reparation.

The justification of war is therefore founded, on the one hand, on the hypothesis — which is in fact a reality — of the lack of a supreme authority in the international community, and on the other hand on the exigency of the law of nature that the transgressor of the norms of social coexistence be punished and the order of justice, violated by the crime, be repaired. It remains, then, to clarify the penal character that war comes to assume in this conception.

Catholic tradition knows three forms of just war: war ad repellendas iniurias, or properly defensive; war ad vindicandas iniurias, or offensive; war ad repetendas res, offensive of a particular character. The first, although at the outset it is not an act of vindictive justice, becomes such by reason of the unjust aggression to which it is opposed. The second, on the other hand, is entirely founded on the punishment of guilt. The State that wages it, according to the common conception of Catholic theologians and moralists, exercises against the adversary the function of the judge, who punishes and reintegrates the order. A double grave difficulty must nevertheless be resolved in order to accept the penal concept of war. The first derives from the necessity of jurisdiction for exercising the office of judge, which does not exist in itself among equal and independent subjects; the second from the fact that the judging State comes to be a judge in its own cause.

To the first of these Suárez has responded in an exhaustive manner, and his solution was later broadly developed by Taparelli. It rests on the concept that the State that is the author of the injustice becomes naturally subject to the offended State ratione delicti. Justice requires, also in international society, the punishment of the crime and the reintegration of the order. Since, however, this cannot be brought about through the intervention of an authority superior to both parties, by virtue of a norm existing in the order of nature the offended party becomes superior to the offender, and derives from that same order the investiture of judge with the right to punish and to avenge the crime committed by the other. The exercise of punitive justice is therefore founded upon a jurisdiction that emerges from the position of guilt.

To resolve the second difficulty—that of a judge in his own case—appeal is made to the impossibility of providing otherwise, so long as international society remains in an inorganic state. The appeal is undoubtedly objective, but it does not serve to remove the dangers implicit in the fact that the judge is at the same time a party to the case, nor to ensure observance of the most profound norm of justice, which commands impartiality in every criminal judgment. This is a weak point in the doctrine.

As Regout has demonstrated, the penal conception of war is not exclusive to the Catholic tradition, which, as has been said, has recognized a form of directly offensive war not ad vindicandas iniurias, but ad repetendas res, stripped of any penal character, if the adversary holds things that do not belong to him, for example a province, believing that he has legitimate possession of it. Since guilt is lacking in this supposition, the foundation on which the exercise of vindictive justice rests is also lacking.

Connecting in part with this concept, but principally by virtue of a deeper analysis of human psychology, the theologians and moralists of the 16th century developed and perfected the preceding doctrine, which was uncertain on this point, maintaining that in order to wage a just war it is not necessary to ascertain moral guilt, but that the presence of merely juridical, factual guilt suffices, since it is not possible to become aware of the adversary's internal dispositions. This inflection of the doctrine toward a more objective evaluation has been judged by Vanderpol and Salvioli as a break with the previous position, which according to them rested solely on the strict concept of moral guilt. This criticism has been shown to be unfounded.

One could now raise the question whether the method of total war, which involves the entire belligerent reaction in hostilities and, with the new means of offense, accumulates immense and frightful material and moral devastation, does not compel a revision of the classical doctrine on just war. Thus have thought some Catholic theologians, as was mentioned at the beginning, holding that under the new circumstances war has become a means that is always and intrinsically illicit. It has been observed, however, that defensive war will be a licit and just act under any supposition, since the law will always permit a State unjustly attacked to exercise the natural faculty of legitimate defense, repelling force with force.

Regarding offensive war, it has further been emphasized that the aggravation of the evils caused by the new methods of war and by the new deadly weapons cannot cause the natural requirement that crime be punished and right be protected to cease. Since right, as Taparelli rightly affirms, is the greatest good of associated life, inasmuch as without its observance society would dissolve, the proportion between the evils caused by war and the good that it is intended to protect will always favor the good, provided that the right vindicated and defended is important. The only conclusion that can be drawn from the immense evils produced by modern war consists in the greater gravity that the right to be vindicated must possess for the life of the State, in order for recourse to arms to be permitted.

A total revision of the classical doctrine would be imposed only if the hypothesis from which it proceeds were to fail, that is, if international society were to pass from the inorganic form to the organic one, constituting a supreme power charged with the defense of right and capable of fulfilling this office. Until such a supreme organ is created, war, under the conditions already described, will be a morally and juridically licit act.

For a complete picture of Catholic doctrine on war, v. OSTILITÀ; PACE; RAPPRESAGLIA.

Antonio Messineo