PEACE. - According to the well-known definition of St. Augustine, peace consists in the tranquillity of order, tranquillitas ordinis (De civ. Dei, 19, 13), and since order presupposes a rational criterion by which objects or persons are harmoniously disposed, peace too postulates certain social principles from which there can derive the tranquil collaboration of individuals in the societies within which their life unfolds, and of nations in the wider community that unites them. Such principles, since the matter to be ordered is composed of rational beings, cannot be — as is self-evident — physical, mechanical or biological (nor can economic equilibrium, or the balance of political interests, or force, be invoked as principles), but must necessarily belong to the moral and juridical order, which alone is capable of exercising its influence on the spiritual faculties of man.
Social peace can be internal or external. It is internal when within one and the same society, family, nation or State, all the members live together in harmony of purpose and help one another, through common collaboration, toward the attainment of the collective well-being, in observance of the natural and positive norms of civil coexistence. Opposed to it are the continued violation of the laws, sedition, revolt, and internal strife, which are wont to be the causes of the decline of peoples. It is external when nations, in observance of the rules of justice that govern and guide their relations in a normative way, cooperate for the collective well-being through cultural and economic exchanges and through mutual understanding. Opposed to this are political combinations, dissensions over conflicting interests, misunderstandings, national hatreds and warlike hostilities.
Peace is the normal condition of the life of individuals and of peoples, who, by virtue of the deepest law of nature, which moves them to seek their own well-being, tend toward tranquillity in order. Therefore all those theories must be rejected as contrary to the demands of human nature which, inspired by a certain social and political Darwinism, maintain that the normal condition of men and of peoples is the struggle for existence, the triumph of the stronger over the weaker, a universal law of life which would move individuals and States to the pursuit of the inimicus. Peace consequently would be nothing other than a period of rest between one conflict and the next, during which forces are gathered for a new assault. This is the law of the jungle applied to man, against which the instinct of solidarity rises up, inclining him to see in his fellow man a companion to love and to help. War itself, as St. Augustine taught, has as its ultimate end peace, through the punishment of the wicked and the restoration of right.
Leaving aside its facile apologies, it is appropriate to premise a question whose solution is necessary for the integration of Catholic doctrine on just war. The stipulations of peace put an end to the state of belligerency between nations and mark the beginning of ordinary relations, in which common law again comes into force. In this regard it matters to determine the conditions of their morality and validity.
Scholars of international law are in agreement in upholding the juridical validity of the stipulations of peace, considering them as bilateral transactions productive of stable relations, notwithstanding the presence of an external coercion which in domestic law is usually held to be a sufficient cause for vitiating consent. Nevertheless, in determining the grounds on which the asserted juridical value of the stipulations of peace would rest, they divide into three currents. The first attributes to them an unconditional value, basing itself on the observation that war in the international order is always a lawful procedure; from this it deduces that its resolving phase too, with the stipulations of peace, is always and unconditionally a juridical transaction valid to all effects. The second excludes their contractual character, conceiving them as a law dictated by the victor to the vanquished, and grounds their unconditional validity on the influence of the victorious force, which would transform a situation of fact into a situation of law. The third admits only a conditioned validity, deriving both from the causes that led to the opening of warlike hostilities and from the content itself of the stipulations.
The starting point for an objective evaluation of the stipulations of peace is the distinction between just and unjust war. Supposing what has already been set forth under the entry WAR, one may here deduce the consequences. If war, as physical force, must be subject to law and serve as a support for justice in order to be considered lawful, then victory, which is its favourable outcome, does not — as Le Fur rightly observes (Guerre juste et juste paix, Paris 1920) — generate of itself any special right, but presupposes the right already existing, in support of which it was begun. What is wont to be called the right of the victor must consequently be understood in a proper sense. It does not mean, nor can it mean, that the victorious State has the faculty of imposing on the vanquished the conditions of peace that may be suggested by its own egoistic interest. The right of the victor is identified, instead, with that very right for whose defence or vindication he took up arms, undoubtedly no longer in its original purity, because increased and enlarged by the enemy's offence and by the damages suffered in the campaign. It follows therefore that the title by virtue of which the victor acquires the faculty of imposing conditions on the defeated party is not properly victory, a mere fact, but the right that he possibly possessed at the outset of hostilities.
Just as, therefore, there can be a just or an unjust war, so there can be just or unjust, moral or immoral impositions of peace, according as they rest upon a juridical title or are devoid of one. If the cause that led the victorious belligerent to open hostilities was just, then the imposition of conditions of peace also becomes radically just; if, on the other hand, the cause was unjust, these too will be unjust. It is to be noted, however, that, on the supposition of a just war, the faculty of the victor always remains well delimited by the right that he succeeded in making triumph, so that the content of the impositions must in every case correspond to the egalitarian demands of justice, that is, to the extent of the original right that justified the armed intervention, together with that additional measure of damage suffered in the hostilities.
These principles being admitted, it remains to determine more particularly what conditions of peace the victor of a just war may lawfully impose on the vanquished. The criterion from which Catholic authors have drawn their conclusions is threefold. The first is derived from commutative justice, the second from punitive or repressive justice, the third appeals to the purpose of war, which, being directed to the conquest of peace through the triumph of the right unjustly violated and the re-establishment of order, must secure it for as long as possible.
From the supreme norm of commutative justice, unicuique suum tribuere, there derives, first of all, the faculty of the victor to demand from the vanquished in a just war the restitution of what is his, the total restoration of that right for whose protection or vindication he was permitted to resort to arms. Victory, although of itself, as a prevalence of force, it generates no right, permits the victor to attain his purpose by asserting in its fullness the right already existing before the outbreak of hostilities. It remains, therefore, in his power to take possession of what is owed to him. From the same principle it also follows from the same principle that there is an equal faculty to demand from the vanquished a certain amount of contributions which, in the abstract, equal the damages suffered for the vindication of one's right, so as to extinguish the new debt contracted toward him by the adversary through his unlawful resistance (v. RIPARAZIONI).
The punitive character of a just war, by virtue of which the belligerent has the faculty to exercise retributive justice upon the adversary, makes legitimate the imposition of sanctions proportionate to the crime committed. Among the conditions of p. there are therefore to be counted not only restitution and reparation, but also a surplus of penalty as punishment. For one who accepts the principles, the consequence is legitimate; but it confers upon p. the coloring of a repressive action, which comes to strike perceptibly the psychology of the defeated peoples. Without therefore denying its logic, it is more opportune, for the purposes of a total and real return to ordinary conditions, that the victor abstain from the use of this faculty, combining that amount which he could impose upon the vanquished by way of sanction into the conditions which he is permitted to dictate by way of restitution and reparation.
The applicability of sanctions against the vanquished becomes complicated if one considers its other aspects. Sanctions can be collective or individual. They are collective if they strike the whole people, considered as an organic unity; individual if they fall upon certain subjects more directly responsible for the war or for atrocious acts against the laws of humanity. In this regard, the ancient concept of the collective responsibility of subjects with the sovereign must be considered superseded, a concept for some time admitted by Catholic theorists, who founded upon it the faculty to exact satisfaction from private goods and to strike even innocent individuals, as integral parts of the community and solidarily responsible with the authority. Contemporary doctrine has made a salutary evolution, considering the State as a universitas, that is, a collectivity of all citizens as a unitary subject, and formally excluding that individuals ut singuli can be the direct object of sanctions.
One cannot exclude, however, in a purely theoretical line, that the chief persons responsible for the war or the guilty of atrocious acts and heinous crimes may receive from the victor an appropriate punishment. A war unjustly provoked has, in fact, in Catholic doctrine, the specific character of a crime against justice and the common good of the society of nations. If an unjust war is a crime, a crime will also be all those acts in which the abuse of force manifestly appears, with the adoption of methods of warfare and repressive measures that bear a particular degree of savagery and barbarity, since war, in any supposition, does not put the belligerent outside the law. The observation that such crimes in the international order find no juridical qualification, there being lacking in it a norm that configures the action as unlawful and criminal, might have a meaning, and this a rather limited one, if supported on positive law, but it has none at all if referred to the objective order of justice, whose norms have a binding force even if not codified in a system. On the basis of these norms, hostile acts contrary to them would be liable to sanction.
Nevertheless, in the translation to the practical field of this conclusion, difficulties that are hardly surmountable are encountered. In the first place, the order of natural justice determines neither the gravity nor the extent of the sanction, which is always established by the human legislator. From it one can deduce only the most general principle of punitive justice, which prescribes that a proportion be observed between crime and punishment. But this most general norm is insufficient for a judge who must pronounce a sentence in a case of which he is an interested party, whence the danger of abandoning the administration of justice to the suggestion of a criterion that is largely subjective in the infliction of the penalty; to avoid this, it is better to use individual sanctions against so-called war criminals with extreme parsimony. Moreover, the judge is not always the best qualified to pronounce a sentence of condemnation, having perhaps stained himself with equal crimes in the course of hostilities, for which he too should sit on the accused's bench. The absence, therefore, of norms that objectively determine the quantity of the penalty and the easy lack of impartiality in the judge make the abstract conclusion scarcely acceptable in the practical field.
There remains to consider the third criterion, adopted by Catholic theorists to establish the conditions of a just p. For the attainment of a stable p., the victor in a just war possesses the right to provide for his own security. Nevertheless, the problem of security presents itself today somewhat differently from the way in which the ancient theorists were able to consider it. Then the problem was resolved with one's neighbors, it had in itself no immediate interference with the political arrangement of the continent, of which the State formed a part, and much less with the political arrangement of the entire world. Taking this situation as a point of reference, security presented itself as a restricted question, to be resolved solely between the contenders, with the imposition of certain guarantees. The concessions that on this title it was believed one might make to the victor cannot therefore cause astonishment. Today, instead, security cannot be attained except on collective bases, because of the profound changes brought about in the life of nations, their very close interdependence and the vastness of the means of offense.
These observations do not intend to invalidate the validity of the principle established by the ancient Catholic theorists, concerning the faculty of the victor to require from the vanquished sufficient guarantees. But, this power being admitted, the question of its extent and of the criterion to which the imposition of the conditions of p. must be subject presents itself again. In vain would one seek a clear answer in the more ancient works, in which the exemplifications of the affirmed right betray the lack of a balancing concept, so excessive do the deductions appear. Even for Taparelli, who is nevertheless not so far from our times, a victor in a just war "may either take away the existence of the society, by taking away its independence, which is called conquest, or diminish its population and militia by obliging it to serve under the victor on even burdensome conditions; or invade its territory and fortresses; or subject it to tribute and bind its commerce. And since the person of him who governs is the prime mover of peoples, so the change now of form of government, now of dynasty in the rulers is likewise a just and effective means in certain cases" (cf. L. Taparelli, Saggio di diritto naturale, 4th ed., II, Rome 1928, p. 186, n. 1344). Few at present are disposed to admit, without sensible restrictions, the doctrine set forth in the passage cited, not only because in its too scanty enunciations it appears contrary to certain principles that have by now become the common patrimony of civilized peoples, but principally because it is necessary that it be integrated with some criterion that may check the subjectivism of the victor.
Such a criterion can be found in certain universal principles of justice. Both the State and the international society possess certain fundamental rights, against which no right of the victor can assert itself. The State on the one hand possesses an inalienable right to its own existence and to all the means indispensable for maintaining and defending it. The international society, in order that the peoples may poscan live together peacefully, it requires a certain equilibrium among its subjects, such as to exclude every disparity brought about by violence. The equilibrium, broken by harsh impositions of peace, tends to re-establish itself imperceptibly and more often violently, with adjustments that can overturn in an instant the laborious work of entire generations. The demands of the State's life and the common good of international society therefore significantly limit the powers of the victor in a just war, toward whom the ancient theorists were too generous in their concessions. The doctrine they set forth concerning the conditions of a just peace needs profound revision and reworking. It is not that law has changed with the times: in its essential part it remains still the same, and the supreme principles on which relations between peoples have been based preserve their intrinsic value; what has changed instead is reality, by which practical conclusions are always conditioned, and the interpretation of those very principles has become deeper and more humane. - See plate XXXIII.
Bibliography6 works
Antonio Messineo