Laws are not Silent in Times of War

CICERO STATED THAT IN WAR there is no law, silent enim legis inter arma, for laws are muted, are silent among arms.*  The force of arms is what happens when the force of law collapses.  But though this is true in one sense, it must not be true in another sense.  There are certain laws which those involved in war must take into account and never transgress.  While war may be morally engaged in if one follows the traditional just war ius in bello principles, these presuppose certain limits.  The Compendium identifies those intrinsically evil acts which are never justified as part of the horrors of war.  They are crimes against God and crimes against humanity.

The first of these areas involves the treatment of the innocent, which is to say the non-combatant.  Those engaged in warfare have a "duty to protect and help innocent victims who are not able to defend themselves from acts of aggression."  This includes those "precepts of international humanitarian law," such as those contained in the Geneva conventions.  (Compendium, No. 504) "The principle of humanity inscribed in the conscience of every person and all peoples includes the obligation to protect civil populations from the effects of war." (Compendium, No. 505)  Wholly excluded from war's destructive force is intentionally targeting innocent civilians. Massacres of innocents, removal of innocent populations from their homes, forced transfers, ethnic cleansings, rape of women as a method of warfare. These are some of the means that are absolutely prohibited.

 "Genocide No. 1" by Daphne Odjig

Genocide is particularly odious:

Attempts to eliminate entire national, ethnic, religious or linguistic groups are crimes against God and humanity itself, and those responsible for such crimes must answer for them before justice. The twentieth century bears the tragic mark of different genocides: from that of the Armenians to that of the Ukrainians, from that of the Cambodians to those perpetrated in Africa and in the Balkans. Among these, the Holocaust of the Jewish people, the Shoah, stands out: "the days of the Shoah marked a true night of history, with unimaginable crimes against God and humanity."

(Compendium, No. 506)

Not only is genocide something absolutely proscribed from a moral standpoint, it is something that imposes upon nations an affirmative obligation to prevent.  Under appropriate circumstances, it justifies the use of force against the wrongdoer.  And those responsible should face justice.

The international community as a whole has the moral obligation to intervene on behalf of those groups whose very survival is threatened or whose basic human rights are seriously violated. As members of an international community, States cannot remain indifferent; on the contrary, if all other available means should prove ineffective, it is "legitimate and even obligatory to take concrete measures to disarm the aggressor." The principle of national sovereignty cannot be claimed as a motive for preventing an intervention in defense of innocent victims. The measures adopted must be carried out in full respect of international law and the fundamental principle of equality among States.

(Compendium, No. 506)

Often forgotten are the means of sanctions and the moral rules that govern their use.  While sanctions are often preferable to war, one must recollect that sanctions ought not to be used as a means to punish innocent populations.  For this reason, economic sanctions--whose effects are indiscriminate and usually fall on innocent populations, especially the weak and vulnerable among them--ought to be used only with great circumspection. 

Sanctions, in the forms prescribed by the contemporary international order, seek to correct the behavior of the government of a country that violates the rules of peaceful and ordered international coexistence or that practices serious forms of oppression with regard to its population. The purpose of these sanctions must be clearly defined and the measures adopted must from time to time be objectively evaluated by the competent bodies of the international community as to their effectiveness and their real impact on the civilian population. The true objective of such measures is open to the way to negotiation and dialogue. Sanctions must never be used as a means for the direct punishment of an entire population: it is not licit that entire populations, and above all their most vulnerable members, be made to suffer because of such sanctions. Economic sanctions in particular are an instrument to be used with great discernment and must be subjected to strict legal and ethical criteria. An economic embargo must be of limited duration and cannot be justified when the resulting effects are indiscriminate.

(Compendium, No. 507)

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Cicero, Pro Milone, IV.11

War: What is it Good For?

AS AN INSTRUMENT OF AFFIRMATIVE or ordinary policy, war is condemned by the Church. The Church has cried against war like a bell ringing its tocsin: "never again some peoples against others, never again! no more war, no more war!"* (Compendium, No. 497)   Indeed, a "war of aggression is intrinsically immoral."  (Compendium, No 500)

Particularly modernly, the Church has condemned the "savagery of war." War does not justify itself; it must be justified. With the rise of modern technology, war has become particularly brutal, particularly inhumane. War is a physical evil always. It is a "scourge." Not only is war a physical evil, more often than not it is a moral evil also, and moral evils always seem to come in its dark train. "The damage caused by an armed conflict is not only material, but also moral." (Compendium, No. 497) 

War is difficult to control: indeed, it seems to devour its participants and embroil them in barbarism. It nurses hatred, desire for vengeance, and bitterness between peoples.  War is "the failure of all true humanism." (Compendium, No. 497)  The "terrifying power of the means of destruction--to which even medium and small-sized countries have access--and the ever closer links between the peoples of the whole world make it very difficult of practically impossible to limit the consequences of a conflict." (Compendium, No. 498)

The sheer brutality of violent war and the physical and moral evils that are always part and parcel of its consequences is what underlies the Church's desire to remove those circumstances that often give rise to war: injustice, poverty, exploitation.  Instead of promoting war, the Church seeks to promote peace, to promote the cooperation between peoples, to promote their physical and moral development and thereby obviate if at all possible the violence of war as an instrument of policy.

While wars of aggression are always condemned as intrinsically evil, the Church recognizes that war is sometimes forced upon a nation.  A nation "that has been attacked" has the "right and the duty to organize a defense even using the force of arms."**  (Compendium, No. 500)  In such circumstances, the Church has fashioned a "just war" doctrine which both outlines when a defensive war may be morally fought and how such defensive war may be fought.  Traditionally, therefore, the Church has divided its "just war" doctrine into two: jus ad bellum and jus in bello.

The traditional elements of jus ad bellum--when war may rightly be entered into by a nation--are outlined in the Compendium:

• There must be a just cause of war.  That is to say, the damage inflicted by the aggressor on the nation or community of nations must be "lasting, grave, and certain."
• There must be a right intention.  In other words, the just cause must be the motive and not just a pretext for entering into the war.
• All other means to obviate the aggression must have been shown to be impractical or ineffective; the defensive war must be a last resort, and so there must be a practical necessity for it.
• there must be serious prospects of success if war is entered into;
• the resort to arms must not produce evils and disorders greater than the evil sought to be eliminated.  In other words, entering into war must appear to be proportionally the better result than not entering into war.

The weighing of these conditions and the prudential decision that are therein entailed are the responsibility of the authority who has the responsibility for the common good.

Since nations have a right to defense, it follows that they have the right to possess "sufficient means to exercise this right to defense," including the existence of armed forces.  (Compendium, 500, 502)  However, the "possession of war potential does not justify the use of force for political or military objectives," nor does it justify the imposition of "domination on another nation."  There is always an obligation to "do everything possible 'to ensure that the conditions of peace exist.'"  (Compendium, No. 500)

Once engaged in war, there are certain moral restrictions upon how war is to be fought.  These rules are called jus in bello.

•  particularly brutal weapons (chemical, biological) are not to be used;
• the non-combatants are to be considered immune from direct and intentional attack;
• force must be proportional to the end sought;
• prisoners of war must be treated with benevolence, and they may not be threatened with death, starvation, rape, torture, or inhumane conditions, etc.
• no intrinsically evil means are to be used (e.g., rape, genocide, weapons of mass destruction)
• reprisals are not to be engaged in (if the opposition violates the jus in bello, it does not justify reciprocal violations).

Particularly given the experience of World War II and the invocation of the "Nuremberg defense" (where a military officer seeks to defend himself from immoral action based upon the defense that he was following the orders of a superior officer), the Church insists on personal responsibility of each member of the military:

Every member of the armed forces is morally obliged to resist orders that call for perpetrating crimes against the law of nations and the universal principles of this law. Military personnel remain fully responsible for the act they commit in violation of the rights of individuals and peoples, or of the norms of international humanitarian law. Such acts cannot be justified by claiming obedience to the orders of superiors.

(Compendium, No. 503)

Finally, the Church insists on respect for the rights of conscientious objectors, yet also insists that these shoulder their duties to the common good:

Conscientious objectors who, out of principle, refuse military service in those cases where it is obligatory because their conscience rejects any kind of recourse to the use of force or because they are opposed to the participation in a particular conflict, must be open to accepting alternative forms of service. "It seems just that laws should make humane provision for the case of conscientious objectors who refuse to carry arms, provided they accept some other form of community service."

 (Compendium, No. 503) (quoting VII, Gaudium et spes, 79)

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*John Paul II, Address to the Diplomatic Corps (Jan. 13, 2003), 4.
**Problematic is the notion of preventive war.  When is a preventive war justified as a defensive war?  "[E]ngaging in a preventive war without clear proof that an attack is imminent" would seem prohibited.  But if there is clear proof of an imminent attack, a nation may engage in preventive war.  (Compendium, No. 501)