Reparations

REPARATIONS. - Reparations consist of that complex of financial and economic burdens and various services that the victor customarily imposes on the vanquished by way of compensation for the damages suffered and the expenses incurred during the military campaign. They are also customarily called war indemnities. They must not be confused with the restitution of territory or of goods contested and in the possession of one of the belligerent parties, nor, at least conceptually, with sanctions, which rest on different moral and juridical norms. Reparations go beyond restitution and are in themselves more restricted than sanctions, although in peace impositions no distinction is made in practice between the latter and the former. Their amount and the modalities of the services are usually determined in the peace treaties, which ordinarily contain a separate title expressly dedicated to this.

Less properly, the same term designates the compensation for eventual damages caused by the war to foreign citizens, to subjects and to neutral States. It is commonly held that a foreigner residing in another State is bound to bear the onerous consequences of war like the other citizens and that, therefore, he cannot legally claim privileged treatment. One who has settled in a country remains entirely subject to its laws and follows its fortunes: he can only demand to be treated on the same footing as the citizens. Derogations from this norm have not been lacking in peace stipulations, but they are to be considered illegal. With regard to the damages suffered by private citizens, justice and equity require that they be compensated as far as possible, so that the burdens of the war may be equally distributed and its liabilities fall upon the entire community. If the belligerent has committed acts contrary to the rights of neutrals, it is bound to the corresponding compensation for damages.

Modern law of war almost entirely neglects the question of reparations. This attitude is due to the positivist principle applied to law, by virtue of which reparations imposed by the peace treaty would have no juridical foundation outside the conventional norm contained in the treaty and in its acceptance by the vanquished. The theory thus reduces so important an aspect of the law of war to an arbitrary manifestation of the victor's will, withdrawing the imposition of reparations from any binding and limiting rule. Moreover, having suppressed the distinction between just and unjust war, it manages to grant full freedom to the victorious force, which can legally impose burdens, even if used against the certain right of the defeated party. A more integral vision of international relations, however, cannot accept this opinion.

Catholic doctrine on war and on its conclusion by means of the peace treaty has an entirely different orientation. From its very origins, its greatest exponents have founded the edifice of international law on the principle of the equality of the subjects of the society of nations, and have established as the first fundamental rule, to which their relations must be subject, the norm deriving from commutative justice, which requires equilibrium between giving and having, between reparations and damage. This norm has been applied to the particular case of reparations; it, together with the more general principle that war is just only when it is waged in defense of a certain and grave right, has led to the conclusion that only the victor in a just war has the faculty of imposing on the vanquished burdens by way of reparations for the damages suffered and the expenses incurred in the conduct of hostilities. In the conditions of peace, consequently, he can impose on the vanquished a certain amount of contributions which, in the abstract, equal the damages suffered for the defense and the vindication of his own right. His faculty, however, finds a moral and juridical limit in the principle of commutative justice, which commands the maintenance of equality between the damage and its compensation.

Among the major Catholic theorists this conclusion is rigidly maintained and leads to other practical conclusions which to a modern cannot but appear excessive. Suárez, p. ca., maintains that, if reparations were not sufficient, it would become lawful to kill some guilty enemies or deprive them of their liberty; not only that, but, if the goods of the guilty could not suffice for the compensation of damages, he admits as lawful to make good on the goods of the innocent and reduce them to servitude. De Vitoria proves more restrained, while Molina, setting the law of reparations on the cephalitas of commutative justice, arrives at deductions that are not very far from those of Suárez. To the current of the same tradition Taparelli is linked, in whom, however, the rigor of his predecessors begins to be tempered (cf. A. Vanderpol, La doctrine scolastique du droit de guerre, Paris 1918, passim).

Their theoretical attitude, logically beyond reproach if referred to the norm of commutative justice, in its substance lends itself to the legitimization of a summa istoria for the observance of a summum ius. Then, when confronted with the damages caused by modern war, it demonstrates its untenability, since the pure and simple application of the principle would lead to the suffocation and extermination of the vanquished people. The ancient doctrine must, therefore, be revised, bringing in other principles established by the same ancient theorists. Taparelli indeed maintains that, when the right of the victor in a just war must be determined, the compensation of damages cannot extend so far as to take away from individuals that happiness to which they are called by the very nature of the social being. Here is an important limit to the egalitarian rule of commutative justice, which, springing from a natural source, requires that reparations must never reach such a weight as to suffocate the life of the vanquished, absorbing its entire economy and subordinating it to the demands of the victor, which in that case would be unjust.

This limitation is corroborated by the exigencies of collective life in international society, whose purpose consists, as de Vitoria, Suárez and their successors saw very well, in common prosperity. Now today States are more interdependent than in the past, so that the common welfare requires a certain economic and social equilibrium, to which the void created in one sector by too onerous peace impositions would be harmful. These must consequently remain subordinate to the more universal end of the international community and be contained within the limits of its imperious demands. It is added moreover that, according to the common Catholic conception, the State which wages a just war does not exercise only a private right of self-defense, but at the same time performs a public function, inasmuch as it takes the place of that auctoritas totius mundi of which de Vitoria expressly speaks. From this publicistic character of its action it is deduced that it cannot have in view only the private good, but must also keep its gaze fixed on the general good of the collectivity in establishing the amount of reparations. To the principle of commutative justice there is therefore joined that of distributive justice, so that both, without cancelling each other, must be tempered so as to give fair satisfaction to the victor without prejudicing the public good. Moreover, if, once hostilities have ceased, States must again enter into peaceful relations and these then maintain them as unaltered as possible, it is easy to see how this becomes quite difficult when a people is struck by excessively burdensome reparations. Driven to extremes by necessity, it will not be long in violating treaties and fomenting a spirit of hatred and rebellion against the existing order, as happened with Germany after the heavy reparations imposed by the Treaty of Versailles. Peace, the ultimate aim of war according to St. Augustine, demands an indispensable moderation.

Catholic theorists, particularly the more recent ones, have contented themselves with appealing to political prudence. But this tempering is too mild if principles of true justice are not invoked. More realistically, Vattel thought that if the rules of exact and rigorous justice were to be observed in a peace treaty, in such a way that each party receives exactly what belongs to it, peace would be impossible: it can be achieved only through a transaction, by which a settlement satisfactory to both the victor and the vanquished is reached. The rule enunciated by de Vitoria has perennial value in this regard: «Oportet moderate victoria uti, cum minima calamitate et malo Reipublicae nocentia».

It was to this criterion that Benedict XV was inspired when, in his letter to the belligerents of the First World War (Sept. 1, 1917: AAS, 9 [1917], p. 417 ff.), he suggested total and reciprocal cancellation for the solution of the problem of reparations. Pius XI then, in the autograph letter to Card. Gasparri of June 24, 1923 (AAS, 15 [1923], pp. 353-55), with regard to the reparations imposed on Germany, affirmed that justice and social charity, as well as the very interest of the creditors and of all nations, required that no more be demanded of the debtor than it could give without entirely exhausting its own resources and its own productivity. The same doctrine is contained in the allocutions and radio messages of Pius XII, delivered during the Second World War (v. especially the Sermo of Christmas Eve 1945: AAS, 38 [1946], p. 22 ff.; and of Christmas Eve 1946: AAS, 39 [1947], p. 11 ff.), in which, as presuppositions of an international order founded on morality and justice, he suggested victory over the seeds of conflict, which consist in excessively strident divergences in the field of the world economy, and over the spirit of cold egoism. For other kinds of reparations v. DANNO; RESTITUZIONE; RISARCIMENTO.

Antonio Messineo