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Noncombatant Immunity: Reflections on Its Origins and Present Status

Published online by Cambridge University Press:  05 August 2009

Richard Shelly Hartigan
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Extract

Perhaps never before has the reality of a just and lasting peace among nations been so ardently desired and so urgently sought. This desire is inspired not so much by a hunger for the benfits of peace as it is by a horror of the consequences if peace is not achieved.

Type
Research Article
Information
The Review of Politics , Volume 29 , Issue 2 , April 1967 , pp. 204 - 220
Copyright
Copyright © University of Notre Dame 1967

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References

1 The elements of the doctrine in its final formulation may be summarized as follows: 1) the war must be declared by the legitimate public authority; 2) a real injury must have been suffered; 3) the damage, likely to be incurred by the war, may not be disproportionate to the injury suffered; 4) there mustbe reasonable hope of success; 5) all possible means of peaceful settlement must have failed; 6) those prosecuting the war must have the right intention; and 7) only legitimate and moral means may be employed in prosecuting the war.Google Scholar Cf., McKenna, Joseph C., S.J., “Ethics and War: A Catholic View,” American Political Science Review, LIV (09, 1960), 647–58;CrossRefGoogle Scholar and Eppstein, John, The Catholic Tradition of the Law of Nations (Washington, 1935).Google Scholar

2 Summary statements of this view appear in Ryan, John K.Modern War and Basic Ethics (Milwaukee, 1940),Google Scholar and Ford, John C., S.J., “The Morality of Obliteration Bombing,” Theological Studies, V (09, 1944), 261–309.CrossRefGoogle Scholar

3 Spaight, J. M., War Rights on Land (London, 1911), p. 37;Google ScholarMoore, J. B., International Law and Some Current Illusions (New York, 1924), Introduction, p. viii.Google Scholar

4 Kunz, Joseph L., “The Chaotic Status of the Laws of War and the Urgent Necessity for Their Revision,” American Journal of International Law, 45 (01, 1951), 37–61;CrossRefGoogle Scholaridem, “The Laws of War,” AJIL, 50 (04, 1956), 313–337;CrossRefGoogle ScholarNurick, Lester, “The Distinction Between Combatant and Noncombatant in the Law of War,” AJIL, 39 (10, 1945), 680–697;CrossRefGoogle ScholarFalk, Richard A., Law, Morality and War in the Contemporary World (New York, 1963);Google ScholarO'Brien, William V., “After Nineteen Years, Let us Begin,” Peace, the Churches and the Bomb, ed. by Finn, James (New York, 1965);Google ScholarGreenspan, Morris, The Modern Law of Land Warfare (Berkeley, 1959).Google Scholar

5 Stone, Julius, Legal Controls of International Conflict (New York, 1954), pp. 684, ff.Google ScholarSee also, Geneva Convention IV (1949), which has been in force for signatory nations since 10 21, 1950.Google Scholar

6 Though our immediate concern here is with the position of the civilian noncombatant in the extreme situation of nuclear war, the continuing conflict in Viet Nam aptly demonstrates the problem of distinction and protection of the civilian population. In this case only conventional weapons are being employed, though of course the nature of guerrilla conflict itself adds a further complicating dimension.

7 Some of the prominent theologians and political scientists who have come to this conclusion include: Ramsey, Paul, War and the Christian Conscience (Durham, 1961);Google ScholarBennett, John C., “Moral Urgencies in the Nuclear Context,” Nuclear Weapons and the Conflict of Conscience (New York, 1962);Google ScholarFord, John C., S.J., “The Hydrogen Bombing of Cities Morality and Modern Warfare, ed. by Nagle, William J. (Baltimore, 1960);Google Scholar and McKenna, Joseph C., S. J., op. cit. Representative English opinion may be found in Morals and Missiles (London, 1961).Google ScholarFor a synopsis of opinions on this point see my article, “Noncombatant Immunity: Its Scope and Development,” Continuum, III (Autumn, 1965), 300–314.Google Scholar

8 For an excellent discussion and analysis of this situation, see Tucker, Robert C., The Just War (Baltimore, 1960).Google Scholar

9 Still a standard work on the history of the Christian just war doctrine is Vanderpol, Alfred, La doctrine scolastique du droit de guerre (Paris, 1919).Google Scholar Superior in many respects, however, is the excellent summary by Regout, Robert, La doctrine de la guerre juste de Saint Augustin a nos jours (Paris, 1935).Google Scholar

10 Augustine, Saint, Quaestiones in Heptateuchum, VI, 10.Google ScholarThe standard edition of this work is in Patrologiae cursus completus, series latina, ed. J. P. Migne, Vol. 34, 781. It should be noted that Augustine's concern is with the conditions under which, in modern terminology, “aggressive” war might be justified; “defensive” war in se was nearly always considered just. Cf.Google ScholarRommen, Heinrich A., The State in Catholic Thought (St. Louis, 1945), pp. 665–67.Google Scholar

11 St. Augustine, , De Libero Arbitrio, trans, as The Problem of Free Choice (Westminster Md.,, 1955), 1, 4.9.Google Scholar

12 For a more complete exposition and critique of Augustine's theory of war, see my article, “St. Augustine on War and Killing: The Problem of the Innocent,” Journal of the History of Ideas, XXVII (04–06, 1966), 195–204.Google Scholar

13 Aquinas, St. Thomas, Summa Theologica, II–II, Q. 40, art. 1.Google Scholar

14 Ibid., Q. 64, art. 7.

15 See the discussion below on the contribution of Francisco de Vitoria.

16 One authority has offered as explanation of this fact that St. Thomas remained too dependent on Roman law and its application to warfare. See, Rommen, op. cit., p. 666, n. 18.Google Scholar

17 Summa Theologica, Q. 64, art. 6.Google Scholar

18 Though it is often blurred, there is nevertheless an important distinction between the Peace of God, which intended to immunize persons and things from attack, and the Truce of God, which sought to limit war's duration by restricting legitimate combat to certain prescribed times. The Peace antedated the Truce by a century. Eventually the distinction was lost and both institutions came to be known simply as Treuga Dei (or, as in Germany, Gottesfrieden).

19 The available commentaries in English, French, and German on the Peace and Truce of God are of limited value. Perhaps the best recent study is by Dolorosa Kennelly, C.S.J., The Peace and Truce of God: Fact or Fiction (unpublished Ph.D. dissertation, University of California, Berkeley, 1963).Google Scholar On the code of chivalry, see, Keen, M. H., The Laws of War in the Late Middle Ages (Toronto, 1965).Google Scholar

20 de Penna, Lucas, Commentaria in Tres Libros Codicis (Lugduni, 1597).Google Scholar See also, Ullmann, Walter, The Medieval Idea of Law as Represented by Lucas de Penna (London, 1946).Google Scholar

21 , St. Antonino, Summa Theologica, III, 4.Google Scholar An excellent commentary on this important writer is Jarrett, Bede, Social Theories of the Middle Ages (Westminster, Md., 1942).Google Scholar

22 Vitoria's major statements on war are contained in his De Indis et De Jure Belli Relectiones.Google ScholarA translation of the second Relectio, i.e., De Jure Belli, by Bate, John Pawley, appears as Appendix B of Scott's, John BrownThe Spanish Origin of International Law (Oxford: the Clarendon Press, 1934).Google Scholar A brief commentary by Vitoria on Aquinas, Thomas' Summa Theologica, II–II, ques. 40, “On War,” appears in the same volume as Appendix F, and will be cited below as De Bello.Google Scholar

23 See, e.g., in addition to Scott's, The Spanish Origins of International Law, the same author's The Catholic Conception of International Law (Washington: Georgetown University Press, 1934).Google Scholar

24 , Vitoria, De Jure Belli, para. 36 (in, The Spanish Origin of International Law, Appendix B, p. LXII).Google Scholar

25 , Vitoria, De Bello, art. I, sec. 14 (in, The Spanish Origin of International Law, Appendix F, p. CXXII).Google Scholar

26 Vitoria, loc. cit.

27 Ibid., para. 37 (pp. LXII–LXIII).

28 Grotius, Hugo, De Juri Belli ac Pacis (Oxford, 1925).Google Scholar

29 Wright, Quincy, A Study of War (2nd ed.; Chicago, 1965), esp. pp. 296–340.Google Scholar

30 Ibid., p. 335.

31 Ibid., p. 296.

32 See, The Hague Conventions of 1899 and 1907 Respecting the Laws and Customs of War on Land (Washington, D.C.: Carnegie Endowment for International Peace, 1915), esp. art. 25.Google Scholar

33 It is true that Secretary McNamara's strategic planning in the past few years has come to stress “limited war capability” and “graduated response,” both representing a praiseworthy shift from the Dulles policy of “massive retaliation.” However, these policies still fail to come to grips with the possible ultimate nuclear situation in which population complexes are tacitly held hostage, largely because they continue to operate within the traditional combatant-noncombatant classification.

34 This proposed alternative raises many practical problems related to definition of new categories of innocence, agreement among policy-makers on these definitions, and development of military weapons-systems designed to operate within the new limits. These problems, however, are not insurmountable. The net gain would, at the very least, be the establishment of new ethical guidelines for political and military action, and an elimination of the present “either” - “or”impasse.