Secularization of the Just War Tradition
Francisco de Vitoria
Vitoria studied philosophy at the College Saint-Jacques in Paris where he edited a commentary on the Secunda of Aquinas’s Summa Theological, written by one of his teachers. After receiving his doctorate Vitoria returned to his native Spain and won the “Chair of Prime,” the most important chair of theology, at the University of Salamanca, a position he held until his death in 1546.
His most famous works, and the ones with which we are concerned. De Indis and De Jure Belli were published for the first time from the lecture notes of two of his students ten years after his death. Although together they total fewer than sixty pages, these works contain innovative insights concerning both jus ad bellum and jus in bello.
The catalyst for his lectures on international law was the treatment of the Native Americans by the Spanish Conquistadors. Vitoria, like many of his contemporaries, was profoundly disturbed by the treatment of the indigenous peoples, and his De Indis is an attempt to ascertain whether the many massacres and plunderings by the Spanish in the New World were right or wrong. Law provided no answers: Indians were subject neither to Spanish civil law nor, as heretics, to Christian law.
Vitoria examines no fewer than six arguments that purport to justify seizing possession of Native Americans’ land and property leg. The Indians were heretical, guilty of mortal sin, unsound of mind, not rightful owners to begin with) and shows each of them to be groundless.
�Concerning the subjugation of the native people, he is equally thorough in his analysis and refutes such arguments as they should be subjugated either for their own good (i.e.. Aristotle’s contention that war could justly be waged against those whose nature dictates that they should be governed, Politics 1256b22-25), or in order to “compel them to come in” to the Christian faith, or by authority of “a special grant from God.”
Vitoria concludes that “the aborigines undoubtedly had true dominion over public and private matters, just like Christians.” Moreover, he insists that Spain had no right to wage war against the Indians and that neither the Emperor nor the Pope could authorize such a war. He adds that, even if the Indians themselves attacked the Spanish out of fear, the Spanish might defend them- selves, but only “so far as possible with the least damage to the natives, the war being a purely defensive one.”
Vitoria concludes that an obligation to observe certain mini- mum standards of conduct obtains between all peoples at all times and that even in a defensive war, nations have a duty to hold their own soldiers accountable for these minimum standards of behavior (even against aliens). These standards include, for example, that no looting or burning shall be permitted without express orders from the prince or general in command-irrespective of the absence of any positive laws to the same.
Vitoria’s position is pivotal because it recognizes an international society of independent states, each with reciprocal obligations and prohibitions on their conduct vis-à-vis one another. His refutation of various Spanish Justifications for seizing the territory and property of the native peoples establishes what is now recognized as a state’s right to territorial integrity.
His rebuttal to Spanish arguments justifying domination of Native Americans establishes what we now call a nation’s right to political sovereignty. These rights, articulated in response to the Spanish abuse of Native Americans. are central to our modern international law.
In his De Jure Belli, Vitoria addresses the problem of war more directly and specifies restrictions on both jus ad bellum and jus in bello. He is the first to insist on an objective analysis of the justifications for going to war and, in so doing, revokes the monarch’s monopoly on decisions regarding the resort to arms. It is not enough, he argues, for a prince to believe he has a just cause; it must also, as Aristotle asserts, come up to the standard of a wise man’s judgment.
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 truth and justice in moral questions are hard of attainment and so any careless treatment of them easily leads to error, an error which will be inexcusable.
[All] who are admitted on summons or voluntarily to the public council or the prince’s council ought, and are bound, to examine into the cause of an unjust war…. [For they] can avert the war, if they lend their wisdom and their weight to an examination into its causes.
Therefore they are bound so to do…. Again, a king is not by himself capable of examining into the causes of a war and the possibility of a mistake on his part is not unlikely and such a mistake would bring great evil and ruin to multitudes. Therefore war ought not to be made on the sole judgment of the king, nor, indeed on the judgment of a few, but on that of many, and they wise and upright men.”
Roman tradition), rather than by a subjective judgment. If the for- mal method is followed correctly, Vitoria reasons, then the cause is as just as we can attain to as imperfect beings.
Vitoria’s contribution to the tradition of jus in bello is likewise significant because of his commitment that “the deliberate slaughter of innocents is never lawful in itself.” for it is “forbidden by natural law.”30 By “innocent” Vitoria means all who do directly take part in the fighting.
This is a distinct break with Augustine who saw war in terms of a moral struggle between the forces of good and evil. Where the enemy represents the embodiment of evil. Vitoria begins his arguments regarding the inviolability of innocents with a quotation from Exodus: “The innocent and the righteous slay them not”: he continues:
The basis of a war is a wrong done. But a wrong is not done by an innocent person. Therefore war may not be employed against him…. [Moreover] it is not lawful within a State to punish the innocent for the wrongdoing of the guilty. Therefore this is not lawful among enemies…. [W]ere this not so, a war would be just on both sides…a thing which, as has been shown, is impossible. And the consequence is manifest, because it is certain that innocent folk may defend themselves against any who try to kill them.
Vitoria goes on to enumerate specifically those who are to be included in the class of innocents, and names women, children, farmers, foreign travelers, clerics and religious persons, and the rest of the peaceable population. He also stipulates that even among the Saracens and other nonbelievers the innocent shall not be harmed because “A prince has no greater authority over foreigners than his own subjects. But he may not draw his sword against his own subjects unless they have done some wrong. Therefore, not against foreign citizens.
But Vitoria realizes that absolute injunction against harming civilians is unattainable; he must temper the ideal of not harming�any innocent with the reality of combat if he is to be credible. This leads him to develop another crucial innovation: the application of any innocents with the reality of combat if he is to be credible. This Aquinas’s doctrine of double effect to collateral damage in war.
Vitoria notes:
Sometimes it is right, in virtue of collateral circumstances, to slay the innocent, even knowingly, as when a fortress of city is stormed in a just war, although it is known that there are a number of innocent people it discharged…without destroying Innocent together with the 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 paragraph following the above quotation Vitoria cautions-most prophetically-against possible abuses of the principle he has just espoused.
Great attention must be paid…to see that greater evils do not arise out of the war than the war would avert…. 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.
Vitoria concludes with a quotation from Matthew 13 to “let the tares grow, lest while ye gather up the tares ye root up also the wheat with them.”
Thus Vitoria at once develops the most powerful case to date for granting special status to innocents, and he also provides the first statement of military necessity as a justification for overriding this protection.34 Double effect is his way of resolving the tension between the deontological dictum that individual rights are sacrosanct, and the teleological argument that public considerations sometimes outweigh individual ones.
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Notice that each of the criteria that Vitoria gives us under the doctrine of double effect is a necessary condition, and that only all three of them together constitute sufficient justification for invoking this doctrine in order to excuse the foreseeable deaths of innocents.
This leads us to another dimension of Vitoria’s exposition of justum bellum, which, like his application of double effect as a justification for collateral damage, continues to be a source of consternation even today: the question of whether a war can be just on both sides.
Recall that in a previously quoted passage (page 61. note 31) Vitoria uses the premise that a war cannot be just on both sides as manifest in order to prove (by a reductio ad absurdum) that even among the enemy, innocents must not be slain. Elsewhere, however, he makes a further distinction concerning justice and injustice in war, which clouds the issue somewhat.
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.
Vitoria’s objective here is to distinguish between guilt and culpability. The innuendo that a war may be considered just by both sides is, however, picked up by subsequent writers and has been a magnet for criticism of Just War theory ever since. Arthur Nussbaum, for example, observes:
The traditional doctrine of just war is essentially religious; where its religious spirit evaporates, only a shallow and stale residue remains. Certainly, the issue of just war deserves discussion in any course or textbook on international law, but only as a matter of analysis and historical information…. The just-war-on-both-sides problem is illustrative. It is there that insoluble troubles befell the writers who tried to elaborate the just war concept in a legal or semi-legal way.
And in his specific discussion of Vitoria’s treatment of this topic. Nussbaum notes: “His objective was laudable, indeed, but one can hardly agree with the obliteration of the difference between the objective criterion of justice and the subjective criterion of good faith.”
But Nussbaum’s criticism is, it seems to me, tenuous at best. Surely we understand Vitoria’s intention in grouping together guilt- less and blameless-he is concerned with reparations and punishments after the war-even if we don’t agree with his method. Vitoria’s objective here is not to develop a system of international law, but to provide guidance to his monarch (and his monarch’s subjects) on the proper moral choices concerning war.
This is even more apparent when we consider that the topic is broached in con- junction with a discussion on whether a subject’s beliefs concerning the justice or injustice of a war affect one’s obligation to serve in it. Vitoria concludes that “if a subject is convinced of the injustice of a war, he ought not to serve in it, even on the command of his prince.”
The common thread in Vitoria’s reasoning is that, ultimately, each person, sovereign or citizen, can do no more than what that individual believes to be right. (He adds that each must vigorously seek the truth to the best of one’s ability.) One who does, with good intentions, what he or she sincerely but mistakenly believes to be right is guilty of wrongdoing without necessarily deserving punishment.
Moreover, Vitoria also employs the distinction between objective justice and culpability when he notes that “a war may be just and lawful in itself and yet owing to some collateral circumstance may be unlawful.”39 This is because wars are political acts waged for the common good. Therefore, when the costs of waging the war are excessive, even though there exists a just cause, “it is indubitable that the prince is bound rather to give up his own rights and abstain from war.”
�It follows that a prince could begin a war believing it to be just (i.e., with good intentions), and subsequently discover it to be unjust because of, for example, new information or costs to his nation. In such cases the war would be objectively unjust, but the monarch who initiated the war would be “excused.” as Vitoria puts it, because he acted in good faith.
In all cases, Vitoria is concerned with providing practical instructions to his readers, be they citizens or heads of state, on how they should act in particular situations, and he necessarily bases his alternatives on subjective beliefs rather than objective facts. Of course, he, along with the rest of us, would like these to be the same. In cases where the ideal is not realized, however, Vitoria addresses the subsequent question of moral and legal culpability after the fact. Thus he addresses his remarks to those contemplating war, to those engaged in war, and to those who are victorious in war. We can see this clearly in his summary, which he organizes in three canons corresponding to three time periods:
First Canon: Assuming that a prince has authority to make war, he should first of all not go seeking occasions and causes of war, but should. if possible, live in peace with all men….land] only under com- pulsion and reluctantly should he come to the necessity of war. Second Canon: When war for a just cause has broken out, it must not be waged so as to ruin the people against whom it is directed, but only so as to obtain one’s rights and the defense of one’s country and in order that from that war peace and security may in time result.
Third Canon: When victory has been won and the war is over, the victory should be utilized with moderation and Christian humility. 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: [for] It is thoroughly unjust that “Quidquid delirant reges, plectantur Achivi.” (For every folly their kings commit the punishment should fall upon the Greeks.
Here Vitoria makes explicit the practical nature of his enterprise. This comes into even sharper relief when contrasted with the way a subsequent Spanish writer and student of Vitoria’s work. Francisco Suarez, accomplishes the same results by specifying that
Three periods must be distinguished with respect to every war: its inception: its prosecution, before victory is gained; and the period after victory. The three classes of persons already mentioned must also be distinguished, namely: the sovereign prince, the intermediate group of leaders [military officers] and the soldiers of the rank and file.
By specifying different rules for each group and each time period, Suarez alleviates the difficulty caused by linking postwar justice to prewar decision making. Of course, the link is still there, but the mechanism for dealing with it is in distinguishing discrete time periods rather than by blurring the objective notion of jus ad bellum, which jurists demand.
Finally, we must keep in mind that when Vitoria discusses national prerogative, his purpose, like that of Ambrose, Augustine, and Aquinas before him, is to determine the normative status of alternatives. A sovereign could not be called before the bar except by God, and then only after the sovereign’s death.
There could be no legal judgment on a sovereign’s actions. Vitoria’s enterprise was to provide guidance that would assist a ruler in choosing the moral alternative. Vitoria’s work had legal connotations only insofar as it motivated rulers to decree laws restricting the behavior of their own citizens vis-à-vis foreigners. We cannot criticize Vitoria for the inefficacy of his theory of international law.
Nussbaum’s criticism stems from the jurist’s insatiable quest for objectivity; and indeed, the purpose of law (at least a sufficient purpose) is to make objective commonly recognized morality. (Hence the idea that legislators declare rather than “make” laws.)
But laws always require interpretation, both in terms of application to particular situations and degree of culpability, because principles of justice, like moral principles, cannot be stated in terms of a general rule that can be applied mechanically to empirical data. In the next chapter we will return to the topic of international law in more detail.
Vitoria specifies reprisals as a type of case where the use of force may intentionally be directed against innocents. He argues that a nation’s leaders have a duty “to vindicate the right against the wrongdoing of their subjects,” and that “the neglect and breach of this duty grants the prince of the injured party the right to recoup himself even from innocent folk.”
Vitoria believes that leaders have an obligation to hold their own subjects accountable for their wrongdoing, even when these wrongdoings are directed against members of another nation. When a leader neglects this duty, the leaders of those wronged have a right to seek justice through reprisals even if the perpetrators of the initial wrong are outside of the victim’s civil jurisdiction.
In practice this means that if certain members of Group A commit a wrong against the members of Group B, and the leaders of Group A fail to take appropriate actions to redress those wrongs, the members of Group B may attempt to recoup themselves against any of the members of Group A in reprisal. And even if they are unable to right the wrongs committed, they may still conduct reprisals to prevent he commission of further wrongs.
This attempt at justifying “evil for evil” between states makes a mockery out of the very notion of justice that underlies the resort to Force in the first place: Justice returns against the guilty, not the Innocent.
Michael Walzer has attempted to salvage those reprisals con ducted in lieu of war by stipulating that (1) they parallel the initial wrong in the kind of target selected; (2) they be proportional in their effects: and (3) “they be carried out so as to avoid civilian deaths.”
�Reprisals of this type are, for Walzer, “a first resort,” undertaken in ieu of war after all attempts at diplomatic or peaceful redress fail.47 Reprisals represent a problematic appendage to Just War theory because they are premeditated acts of violence between states that violate the principle of jus ad bellum. A second type of reprisal, con- ducted during wartime, is even more contentious. We will save our discussion of them until Chapter 10.
Vitoria’s work inspired subsequent Spanish writers such as Suarez, who transcribes Vitoria’s ideas into the language of jurists and elaborates on the distinction between combatants and innocents, and Vasquez, who envisions a society of Free states with reciprocal rights, regulated by a law of nations and independent of either imperial or ecclesiastical authority. We shall pass over their work, however, to examine in detail the views of a Dutchman, widely regarded as the father of international law, Hugo Grotius.
Topics for Further Discussion
1. Aquinas believed that individuals could often ascertain God’s will concerning right conduct independent of revealed truths. Why did he believe this?
2. Vitoria argued that there are laws governing the treatment of all humans, even non-Christian “aborigines.” Where did he believe these laws came from? Provide a secular defense for the view that there are at least some universal moral truths relevant to human behavior.
3. Vitoria accepts that monarchs are fallible. Why is this important to his work?
4. Vitoria extends Aquinas’s doctrine of double effect to collateral damage in war. What might be some problems with this in practice?
5. On June 26, 1993. United States naval ships attacked the Iraqi intelligence headquarters in reprisal for an assassination attempt against former U.S. President George Bush. The evidence implicating the Iraqi government was conclusive. Of the 23 Tomahawk missiles fired in the attack. However, three missed the target and landed in a residential section of Baghdad, thereby killing numerous civilians.
a. Was the U.S. response in this case a justified reprisal using Vitoria’s criteria? Was it appropriate according to Walzer?
b. Article 51 of the United Nations Charter states the following: “Nothing in the present charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations.” Does this article justify acts of reprisal (in lieu of war) against states sponsoring terrorism?
Read More: Chap#4 Secularization of the Just War Tradition | Part I