Hugo Grotius (15831645). The Rights of War and Peace. 1901.
Chapter XI: The Right of Killing Enemies, in Just War, to be Tempered with Moderation and Humanity
In1 what cases strict justice allows the destruction of an enemyDistinction between misfortune and guiltBetween principals and accessories in warDistinction between unwarrantable and excusable grounds of promoting warSometimes right and laudable to forbear punishing an inveterate enemyEvery possible precaution requisite to spare the innocentEspecially children, women, and the aged, except they have committed atrocious actsClergymen, men of letters, husbandmen, merchants, prisonersConditional surrender not to be rejectedUnconditional surrenderExceptions to the above rules, some of them considered, and refutedDelinquents when numerous to be sparedHostages to be sparedUnnecessary effusion of blood to be avoided.
I. AND II. CICERO, in the first book of his offices, has finely observed, that some duties are to be observed even towards those, from whom you have received an injury. For even vengeance and punishment have their due bounds. And at the same time he extols those ancient periods in the Roman government, when the events of war were mild, and marked with no unnecessary cruelty.
The explanations given in the first chapter of this book will point out the cases, where the destruction of an enemy is one of the rights of lawful war, according to the principles of strict and internal justice, and where it is not so. For the death of an enemy may proceed either from an accidental calamity, or from the fixed purpose of his destruction.
No one can be justly killed by design, except by way of legal punishment, or to defend our lives, and preserve our property, when it cannot be effected without his destruction. For although in sacrificing the life of man to the preservation of perishable possessions, there may be nothing repugnant to strict justice, it is by no means consonant to the law of charity.
But to justify a punishment of that kind, the person put to death must have committed a crime, and such a crime too, as every equitable judge would deem worthy of death. Points, which it is unnecessary to discuss any further, as they have been so fully explained in the chapter on punishments.
III. In speaking of the calamities of war, as a punishment, it is proper to make a distinction between misfortune and injury. For a people may sometimes be engaged in war against their will, where they cannot be justly charged with entertaining hostile intentions.
Upon this subject, Velleius Paterculus observes that to blame the Athenians for revolting, at the time they were besieged by Sylla, betrays a total ignorance of history. For the Athenians always continued so steady in their attachment to the Romans, that their fidelity became a proverbial expression. Yet their situation at that time excused their conduct, overpowered by the arms of Mithridates, they were obliged to submit to a foe within, while they had to sustain a siege from their friends without.
IV. and V. Between complete injuries and pure misfortunes there may be sometimes a middle kind of actions, partaking of the nature of both, which can neither be said to be done with known and wilful intention, nor yet excused under colour of ignorance and want of inclination. Acts of pure misfortune neither merit punishment, nor oblige the party to make reparation for the loss occasioned. Hence many parts of history supply us with distinctions that are made between those who are the authors of a war, and principals in it, and those who are obliged to follow others, as accessories in the same.
VI. But respecting the authors of war, a distinction is to be made also, as to the motives and causes of war: some of which though not actually just, wear an appearance of justice, that may impose upon the well meaning. The writer to Herennius lays it down as the most equitable vindication of injury, where the party committing it, has neither been actuated by revenge, nor cruelty; but by the dictates of duty and an upright zeal.
Cicero, in the first book of his offices, advises the sparing of those, who have committed no acts of atrocity and cruelty in war, and that wars, undertaken to maintain national honour, should be conducted upon principles of moderation. And, in one of his letters, adverting to the war between Pompey and Caesar, he describes the struggle between those two illustrious men, as involved in so much obscurity of motives and causes, that many were perplexed in deciding which side to embrace. In his speech too for Marcellus, he remarks that such uncertainty might be attended with error, but could never be charged with guilt.
VII. Such forbearance in war is not only a tribute to justice, it is a tribute to humanity, it is a tribute to moderation, it is a tribute to greatness of soul. It was in this moderation, says Sallust, the foundation of Roman greatness was laid. Tacitus describes his countrymen as a people no less remarkable for their courage in the field, than for their humanity to the vanquished and suppliant.
On this subject, there is a brilliant passage in the fourth book to Herennius, where it is said, It was an admirable resolution of our ancestors, never to deprive a captive prince of his life. For it would be truly a violation of common justice to abuse, by wanton cruelty and rigour, the power over those, whom fortune has put into our hands, by reducing them from the high condition, in which she had placed them before; their former enmity is forgotten. Because it is the characteristic of bravery to esteem opponents as enemies, while contending for victory, and to treat them as men, when conquered, in order to soften the calamities of war, and improve the terms and relations of peace. But it may be asked, if the enemy now treated with this indulgence would have shewn the same lenity himself. To which a reply may be made, that he is not an object of imitation in what he WOULD have done, so much as in what he OUGHT to have done.
VIII. Though there may be circumstances, in which absolute justice will not condemn the sacrifice of lives in war, yet humanity will require that the greatest precaution should be used against involving the innocent in danger, except in cases of extreme urgency and utility.
IX. After establishing these general principles, it will not be difficult to decide upon particular cases. Seneca says, that in the calamities of war children are exempted and spared, on the score of their age, and women from respect to their sex. In the wars of the Hebrews, even after the offers of peace have been rejected, God commands the women and children to be spared.
Thus when the Ninevites were threatened with utter destruction, on account of their grievous crimes, a mitigation of the sentence was allowed, in compassion to the many thousands, who were of an age incapable of making a distinction between right and wrong.
If God, from whose supreme gift the life of man proceeds, and on whose supreme disposal it depends, prescribes to himself a rule like this, it is surely incumbent upon men, who have no commission, but for the welfare and preservation of the lives of men, to act by the same rule. Thus age and sex are equally spared, except where the latter have departed from this privilege by taking arms, or performing the part of men.
X. The same rule may be laid down too with respect to males, whose modes of life are entirely remote from the use of arms. And in the first class of this description may be placed the ministers of religion, who, among all nations, from times of the most remote antiquity have been exempted from bearing arms.Thus, as may be seen in sacred history, the Philistines, being enemies of the Jews, forbore doing harm to the company of prophets, that was at Gaba: and David fled with Samuel to another place, which the presence of a prophetic company protected from all molestation and injury.
Plutarch relates of the Cretans, that when all order among them was entirely broken by their civil broils, they abstained from offering violence to any member of the priesthood, or to those employed in the sacred rites belonging to the dead. From hence the Greeks came to denote a GENERAL MASSACRE by the proverbial expression of NO ONE BEING LEFT TO CARRY FIRE TO THE ALTAR.
XI. Diodorus bestows an encomium upon the Indians, who, in all their wars with each other, forbore destroying or even hurting those employed in husbandry, as being the common benefactors of all. Plutarch relates the same of the ancient Corinthians and Megarensians, and Cyrus sent a message to the king of Assyria to inform him that he was willing to avoid molesting all who were employed in tilling the ground.
XII. To the above catalogue of those exempted from sharing in the calamities of war, may be added merchants, not only those residing for a time in the enemys country, but even his natural-born, and regular subjects: artisans too, and all others are included; whose subsistence depends upon cultivating the arts of peace.
XIII. and XIV. More civilized manners having abolished the barbarous practice of putting prisoners to death, for the same reason, the surrender of those, who stipulate late for the preservation of their lives either in battle, or in a siege, is not to be rejected.
The Romans, when investing towns, always accepted offers of capitulation, if made before the battering ram had touched the walls. Caesar gave notice to the Atuatici, that he would save their city, if they surrendered, before the battering ram was brought up. And in modern times it is the usual practice, before shells are thrown, or mines sprung, to summon places to surrender, which are thought unable to hold outand where places are stronger, such summons is generally sent, before the storming is made.
XV. and XVI. Against these principles of natural law and equity an objection is sometimes derived from the necessity of retaliation, or striking terror, in cases of obstinate resistance. But such an objection is by no means just. For after a place has surrendered, and there is no danger to be apprehended from the prisoners, there is nothing to justify the further effusion of blood.Such rigour was sometimes practised, where there were any enormous acts of injustice, or any violation of faith; it was practised also upon deserters, if taken.
Sometimes, where very important advantages may attend striking a terror, by preventing the same crimes in future from being committed, it may be proper to exercise the right of rigour in its full extent. But an obstinate resistance, which can be considered as nothing but the faithful discharge of a trust, can never come within the description of such delinquencies, as justify extreme rigour.
XVII. Where delinquencies indeed are such as deserve death, but the number of offenders is very great, it is usual, from motives of mercy, to depart in some degree from the right of enforcing the whole power of the law: the authority for so doing is founded on the example of God himself, who commanded such offers of peace to be made to the Canaanites, and their neighbours, the most wicked of any people upon the face of the earth, as might spare their lives upon the condition of their becoming tributaries.
At the time, when it was a general opinion that every one had the same right over his life, as over his property, and that right, either by express or implied consent was transferred from individuals to the state, it is not surprising that we should read of hostages, though harmless and innocent as individuals, being punished for the offences of the state: and, in this case, the consent of the state to such a regulation implies that of individuals, who have originally resigned their own will to that of the public; in whom, after such resignation, it indubitably vested.
But when the day-spring rose upon the world, men, obtaining clearer views of the extent of their power, found that God, in giving man dominion over the whole earth, reserved to himself the supreme disposal of his life, so that man cannot resign to anyone the right over his own life or that of another.
XIX. By way of conclusion to this subject it may be observed, that all actions no way conducive to obtain a contested right, or to bring the war to a termination, but calculated merely to display the strength of either side are totally repugnant to the duties of a Christian and to the principles of humanity. So that it behoves Christian princes to prohibit all unnecessary effusion of blood, as they must render an account of their sovereign commission to him, by whose authority, and in whose stead, they bear the sword.