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UNJUSTIFIABLE WAR AND THE MEANS TO AVOID IT*
1. THE CONCEPTION OF JUST WAR
In the beginnings of international law, in Grotius and his predecessors and immediate successors, discussion of the Right of War, the jus ad bellum, takes up a great deal of room by the side of the Right in War, the jus in bello. Today, however, the question, When is war justified? has almost ceased to be discussed. The so-called predecessors of Grotius, like himself and his immediate followers, accepted from the Roman law the notion of the bellum justum piumque. This concept was purely formal. To make a war a bellum justum piumque nothing more was required than compliance with the precepts of the fetial law as to the formalities of declaring war. To be sure, these, at least originally, required a resolution of the Senate and its ratification by the Centuriate Comitia. Later, however, this requisite, to which one could perhaps not always deny some material significance,completely disappeared behind the empty ceremony which the Pater Patratus performed at the boundary of the enemy country with the "hasta ferrata aut sanguinea præusta” hurled across the same. Nay, in the war with Pyrrhus, a deserter from the former's army was allowed to buy a piece of ground in Rome, into which the spear was flung as into hostile territory, in order that the Pater Patratus might not have to go all the way to the frontier. On these formalities, which naturally became more and more futile, Roman historians based their country's reputation of never having waged an unjust war. Still, the fetial law had at least the one advantage of giving the adversary a 33 days' respite for deliberation.2
To that meaningless formal conception of war Christianity sought to substitute a conception of just war based upon its merits. It was St. Augustine who, in his indictment,-for such his masterpiece appears to
* Translated from the German by Aloysius Wenger, of Washington, D. C.
1 Weiss, Le droit fetial, Paris, 1883, p. 27; Fusinato, R. D. I., XVII (1885), p. 278 ff.; Phillipson, International Law and Custom of Ancient Greece and Rome, II, 329. 2 Phillipson, II, 335.
be, -of the Roman State and the whole of pagan civilization, set up another, deeper, material and less formal concept of war, which he developed more fully in his commentary on the Book of Joshua. According to him, only such war is just as is intended to avenge a wrong, to chastise a State for its failure either to punish one of its subjects for a wrong committed by him against another, or to restore what the State itself has unlawfully taken from another. Closely adhering to Augustine, Thomas Aquinas teaches, that three things are needed in order that a war may be called just: first, it must be ordered by the lawful authorities; secondly, there must be a justa causa, i. e., the foe who is being attacked must deserve this by reason of a wrong imputable to him; and, thirdly, there is required a right intention on the part of the attacking party, that is, a purpose to promote good, or to avoid evil.
The doctrine of the Church on war received its finishing touch in the writings of the Jesuit Francisco Suarez (1548–1617), whose great influence upon the natural law theory of international law is universally recognized. Leaning upon the Roman law theory of possession, he requires for the justification of war, in addition to its proclamation by the legitimate power, also a just cause and a good title; he further demands observance of due formalities and fairness in beginning the war, and in its prosecution and conclusion (debitus modus et æqualitas in illius initio, prosecutione et victoria). By justus titulus he too understands a wrong, and indeed a grievous wrong, proportionate to the evil of war. In weighing this motive for war, the prince ought to proceed conscientiously. The best and safest course, according to Suarez, would be to let arbitrators decide as to its adequacy. But arbitrators capable of inspiring sufficient confidence in both parties are not easily found, he thinks; therefore, this mode of deciding has become “rarissimum" and the prince may, provided he be in good faith, rely upon the judgment of learned and prudent men (prudentes et docti viri), appointed by himself. The requirement of a justus titulus or of a justa causa is a very long
a step forward in comparison with Roman law; for there it was not a question of intrinsic equity, but merely of external, formal legality.
3 Cited in the Decretum Gratiani, III, C. 23, que II, C. 2. 4 Summa Theologica, II qu. 40d. Bello, Art. 1.
One great difficulty in deciding the question whether or not a war be just, evidently lies in the fact that in almost all cases both parties claim to have the justa causa belli on their side. Can a war actually be a just one on both sides? This question has occupied in most lively fashion all authors who have treated the right of war according to the principles of Christianity. With very few exceptions, they have all answered this question in the negative. Only when on one side there is an innocent mistake as to facts, can a war, in their opinion, be actually regarded as a just one for both parties. And yet the contrary might not seldom be true. Not always is all the right on one side alone, and on the other only hypocrisy and sheer pretense of right. In many cases it is merely a question of how far back one follows up the chain of causes which have led to the war. A war may in its proximate cause be just, on the one hand, and in its remote causes be just on the other. Even as penal law opposes the auctor riræ, the originator of the strife, to the auctor pugnæ, the beginner of the fray, so the matter often stands in war. Only a mind penetrating to the remotest ramifications of the network of causes would in many cases be competent to decide on whom the original guilt rests. A wrong which State A may have committed years ago against State B, produces in the latter a feeling which gradually swells to bitterness, to hate, and finally leads State B to undertake something against State A, which furnishes this latter a just cause for war. Because of this reaction, which the injustice of the one party is wont to provoke in the other, it is extremely important that every difference between states be settled as quickly as possible by peaceful means, and best of all by recourse to law through arbitration, lest through some untoward event a too longcontinued tension between the parties concerned may break out into
It being in many cases impossible to answer squarely the question as to which side is right in a war, just as even in private quarrels, e. g., between man and wife or other relatives the fault is often a divided one, it is not to be wondered at that international law, upon descending from the heights of religious and philosophical contemplation to the domain of reality, put the question of the justness of war more and more out of circuit. But this was not a step forward on the part of mankind. Even Hugo Grotius still explicitly teaches (L. II, cap. 1 and 22) that the legitimate cause for war consists solely in the wrong suffered, and refers to Augustine as his authority for the statement; but, that even ex justis causis war must not be undertaken rashly (L. II, cap. 24). To warn against wanton wars is the main purpose of his work De Jure Belli ac Pacis. Observing with horror for what trifling causes war in his days was often entered upon, and how all regard for divine and human rights vanished in war, he sought to show that there existed between states a common right that ought to prevail for wars as well as during wars (esse aliquod inter populos jus commune, quod et ad bella et in bellis valeret) (Prolegomena). The jus ad bellum has, however, disappeared from modern science. International law puts up with war as with a historical fact, without differentiating the rights of belligerents according to their right or lack of right to make war.
5 Cf. Lammasch, Lehre von der Schiedsgerichtsbarkeit in the Handbuch des Völkerrechts, Vol III, Part 3, p. 35 ff.
Surely only an intellect, such as de Laplace postulated 6 in a famous passage, but not that of our diplomats, would be competent to say which war is intrinsically just and which intrinsically unjust.
2. THE CONCEPTION OF JUSTIFIABLE WAR
But it is quite a different matter to determine whether a state, before it draws the sword, has done all that may be asked of it to reach a peaceful adjustment of its difference with another Power, or an equitable compromise of their conflicting interests. Nowadays, where the interests of all nations and states interweave, even the states that are apparently not concerned have the right to demand such a course from their fellow states. Experiences of recent date have shown that a war whose occasion may concern only two or three Powers has a tendency to carry away others too, and that a war of such dimensions, because of the enormity of the evil for the whole community of states, entitles all to demand from each other enough consideration so that they will resort to it as the last, the very last, expedient, only after having seriously tried all other remedies and these have proved unavailing. Wherefore, the Powers not directly interested in the conflict are entitled to be heard when proposing
6 Laplace, Essai Philosophique sur les Probabilités, Paris, 1814, p. 3.