In The Old Days Only War

Just War in Antiquity

The policy of recognizing prescriptions concerning the just conduct of war is not a product of “Christian charity” or even Western civilization, but is found in some form across all cultures for which we have detailed historical records. Fifth century B.C.

In The Old Days Only War

China recognized rules that stipulated that no war should be begun without just cause; that the enemy be notified of pending attacks; that no injury be done to the wounded; and that the persons and property of innocents be respected.

Different territorial groups of the Aztec Empire fought battles with fixed numbers of warriors at set times on predetermined battlefields, which they called “wars of flowers.” Laotse, a Chinese philosopher from the sixth century B.C. and founder of the Tao religion wrote:

A good general effects his purpose and stops…. Effects his purpose and does not take pride in it. Effects his purpose as a regrettable necessity. Effects his purpose but does not love violence.

Sun Tzu, a fifth century B.C. Chinese soldier and philosopher. Who has been highly influential in the development of Chinese military doctrine and who has had (and continues to have) tremendous influence on U.S. military doctrine, advised:

Treat the captives well, and care for them.

This is called “winning the battle and becoming stronger.”

Hence what is essential in war is victory, not prolonged operations. And therefore the general who understands war is the Minister of the people’s fate and arbiter of the nation’s destiny.

The ancient Egyptians regarded humanitarian actions in war important enough to be included among their records of glorious actions, including, in one instance, the rescue of enemy sailors whose ship had been sunk in battle. And in the Book of Manu, produced by the Hindu civilization in India about the fourth century B.C., we find humanitarian rules for regulating land warfare that are strikingly similar to many aspects of present-day international law regarding the conduct of war.

When the king fights with his foes in battle, let him not strike with weapons concealed in wood, nor with such as are barbed, poisoned. Or the points of which are blazing with fire.

Let him not strike one who in flight has climbed on an eminence, nor a eunuch, nor one who joins the palms of his hands in supplication, nor one who flees with flying hair, nor one who sits down, nor one who says “I am thane”; nor one who sleeps, nor one who has lost his coat of mail, nor one who is naked, nor one who is disarmed, nor one who looks on without taking part in the fight, nor one who is fighting with another foe; nor one whose weapons are broken, nor one afflicted with sorrow, nor one who has been grievously wounded, nor one who is in fear, nor one who has turned to flight; but in all cases let him remember the duty of honorable warriors.

The Babylonian leader Sennacherib treated the Jews according to principles of justice and even distinguished those responsible for initiating the war from those soldiers who fought in it. Concerning his directives after the battle against Jerusalem in 690 B.C., we get the following account:

I assaulted Ekron and killed the officials and patricians who had committed the crime and hung their bodies on poles surrounding the city. The [common] citizens who were guilty of minor crimes, I considered prisoners of war. The rest of them, those who were not accused of crimes and misbehavior, I released.

In Western culture the Just War Tradition is no less pronounced. In the Laws Plato argues that wars are necessary evils, fought in order to gain peace; because wars are often unavoidable. He outlines restrictions pertaining not only to jus in bellow, but also to jus ad bellum. In the Republic. Socrates provides the following guidance for soldier guardians of an ideal state.

They will not, being Greeks, ravage Greek territory nor burn habitations, and they will not admit that in any city all the population are enemies, men, women, and children, but will say that only a few at any time are their foes, those, namely, who are to blame for the quarrel.

And on all these considerations they will not be willing to lay waste the soil, since the majority are their friends, nor to destroy the houses, but will carry the conflict only to the point of compelling the guilty to do justice by the pressure of the suffering of the innocent.


“And later, in the Laws”

Any person making peace or war with any parties independently of the Commonwealth shall likewise incur the pain of death. If a section of the state makes peace or war with any on its own account, the generals shall bring the authors of the measure before a court, and the penalty for conviction shall be death.

In these passages Plato grants special status to noncombat- ants and innocents and reserves decisions regarding the initiation and cessation of hostilities to “proper authority.”

Aristotle, like Plato, regards war (or the threat of war) as inevitable and expresses concerns about sufficient justifications for going to war: “No one chooses to be at war or provokes war for the sake of war…. We make war that we may live at peace. He is the first one to use the phrase “just war” and in Rhetorical ad Alexandrum he provides guidance concerning justifications for going to war and for when to seek peace:

The pretexts for making war on another state are as follows: when we have been the victims of aggression, we must take vengeance on those itself; or else, when we are actually being wronged, we must go to war who have wronged us, now that a suitable opportunity has presented on our own behalf or on behalf of our kindred or benefactors, or else we must help our allies when they are wronged; or else we must go to war to gain some advantage for the city, in respect either of glory, or of resources, or of strength, or of something similar….

And we must realize that it is the universal custom of mankind to abandon mutual warfare, either when they think that the demands of the enemy are just, or when they are at variance with their allies, or weary of war, or afraid of their enemy, or suffering from internal strife, and Xenophon’s historical narratives point to Greek concern for considerations of justice in both when and how to wage war; the popular playwright Euripides dramatizes the prohibition against harming prisoners of war.

Another example from about the same period may be found in the policies of Aristotle’s student, Alexander the Great. Concerning one of his battles against the Persians for control of Greek cities (Battle of Halicarnassus, 334 B.C.), we get the following account.

Although the defenders used cross-fire to good effect and delivered another partly successful sally, it became apparent that Alexander’s siege engines would break a way into the city…. At the end of the day a company of Macedonian veterans drove the Greeks and Persians back in disorder and might have broken into the city if Alexander had not sounded retreat in order to spare the civilian population. Shaken by their heavy losses, the garrison-commanders decided to withdraw into the two citadels by the harbor….

Alexander broke into the city….and forbade any reprisals against the civilians.

This was characteristic of him throughout his life; after his victory at the Hydaspes River he “ordered the burial of the dead, his own and the bravest of the enemy.” Except for the Greek mercenaries he let the defeated go free. He did not demand indemnities or impose conscription, and when hillsmen came down to surrender he sent them back to cultivate their own properties in peace.

Polybius records examples of injustice in the conduct of war and contrasts such action with the concerns for justice on the battlefield shown by both Phillip and Alexander and Julius Caesar chronicles his beneficence toward defeated foes in his Civil Wars, and in a letter to Cicero writes:

You are right to infer of me…that there is nothing further from my nature than cruelty. Whilst I take great pleasure from that fact, I am proud indeed that my action wins your approval. I am not moved because it is said that those, whom I let go, have departed to wage war on me again, for there is nothing, I like better that I should be true to myself and they to themselves.

Other cultures also developed constraints on how war should be conducted. The ancient Hebrews had certain rules governing warfare, as the following passage from Deuteronomy shows.

When you draw near to a city to fight against it, offer terms of peace to it. And if its answer to you is peace and it opens to you, then all the people who are found in it shall do forced labor for you and shall serve you. But if it makes no peace with you, but makes war against you, then you shall besiege it; and when the Lord your God gives it into your hand you shall put all its males to the sword, but the women and the little ones, the cattle, and everything else in the city.

All its spoil, you shall take as booty for yourselves: When you besiege a city for a long time, making war against it in order to take it. You shall not destroy its trees by wielding an axe against them; for you may eat of them, but you shall not cut them down…. Only the trees in the field which you know are not trees for food you may destroy and cut down that you may build siege works against the city that makes war with you, until it falls.

Finally, there are even historical cases of limiting the brutality of war through arms control. For example, during the Japanese invasion of Korea in 1590, the principal weapon carried by Japanese soldiers was the musket, reputed to be the best in the world at the time. In less than a century, however, firearms had virtually disappeared from Japan because they were inconsistent with the ethos of Japanese warriors.

Although this sampling of unrelated examples provides, in most cases, guidelines that are quite removed from what we would Just War in Antiquity consider appropriate, they nevertheless identify explicit restraints on both jus ad bellum and jus in bello that reach back to the beginning of recorded history. Later we will attempt to understand why commonly held notions of justice so often break down in warfare. For now, however, let us examine in more detail the work of a Roman philosopher whose ideas directly influenced the development of our present tradition of Just War, Marcus Tullius Cicero.

The Just War Tradition in Ancient Rome

In De Re Republicans 3. XXIII, written in the first century B.C., Cicero provides the precursor of our modern concept of jus ad bellum.

In The Old Days Only War

A war is never undertaken by the ideal state, except in defense of it honor or safety….

Those wars which are unjust are undertaken without provocation. For only a war waged for revenge or defense can actually be just…

No war is considered just unless it has been proclaimed and declared. And unless reparation has first been demanded.

Wars fought for revenge for wrongs done (we might say retribution) are included in wars fought in defense of honor. Clearly here Cicero has in mind wars fought on behalf of Rome’s allies. Elsewhere in the same section from which the above quotation was taken we find the following: “Our people, by defending their allies. Have gained domination over the whole world.”

Cicero also notes that war should be a last resort, turned to only when discussion is unsuccessful.

Other necessary conditions for jus ad bellum are the following:

1. War must be declared by proper authority.

2. The antagonist must be notified of the declaration of war.

3. The antagonist must be afforded the opportunity to make a peaceful settlement prior to the initiation of hostilities.

Concerning these last conditions, Rome had a detailed procedure whereby whenever she had a grievance against another city. Ambassadors under the direction of a distinguished statesman would go to the offending city and demand reparations.

The ambassadors then returned to Rome and waited thieves (New York) party would again travel to the other nation and threaten war. If the offending nation still refused, the designated statesman would inform the Roman Senate of the failure to achieve reparations, and the Senate could decide to resort to force to carry out its claims.

Once the Senate voted for war, the ambassadors were again sent to the hostile nation to announce the declaration of war and symbolically throw a javelin on enemy soil. The only time these elaborate procedures were not followed was when the enemy was not organized as a state, when Rome was already under attack, or in the case of civil war.

According to Roman law a war was just if it conformed to these procedures. Thus Roman law provided a means whereby Rome could “objectively” assess justice in the international arena; war waged in accordance with these conditions was formally just.

Moreover, under Roman law only those who were formally recognized as members of the military profession had the authority to act on behalf of the state by engaging in state-sanctioned warfare. Officers who fought in battles after they had been discharged or their units deactivated could be guilty of murder. Cicero writes:

When Popilius decided to disband one of his legions, he discharged also young Cato, who was serving in the same legion. But when the young man out of love for the service stayed on in the field, his father wrote to Popilius to say that if he let him stay in the Army, he should swear him into service with a new oath of allegiance, for in view of the voidance of his former oath he could not legally fight the foe. So extremely scrupulous was the observance of the laws in regard to the conduct of war.

In a second example, concerning a youth who was discharged while serving in Macedonia, Cicero relates that the young man was warned “to be careful not to go into battle; for the man who is not legally a soldier has no right to be fighting the foe.”

The Roman Empire was such a dominant force-morally and militarily that in formulating her laws, she assumed the role of an objective observer perating from behind a “veil of ignorance,” as to which side of the aw she might be on.

In other words, the Roman Senate adopted just” laws based on principles so obvious and reasonable that they must be universally recognized, and imposed them on her and those nations with whom she interacted. In this sense Rome is the “lawgiver” and these laws are jus gentium or world law. Nevertheless, even though the Roman term jus gentium is usually rendered as “international law.” or “law of nations,” it is worthwhile to note that historically the term referred to laws declared by the Roman Senate, not by any international organization.

The Roman Senate assumed the same “ideal observer” role that is assumed by the representatives to modern international conventions at Geneva, The Hague and the United Nations. Thus, Roman jus gentium seems to meet the objections of those who criticize modern international law because there is no recognized common authority with the power of sanctions. We will return to this topic in more detail in later discussions of contemporary international law.

Roman rules governing how war should be fought were also delineated. In De Officious, Cicero notes that “there are certain duties that we owe even to those who have wronged us. [And] there is a limit to retribution and punishment.” Cicero emphasizes that only soldiers sworn to duty with active military units may legally wage war, and he adds:

Not only must we show consideration for those whom we have conquered by force of arms, but we must also ensure protection to those who lay down their arms and throw themselves upon the mercy of our generals, even though the battering ram has hammered at their walls.

It is possible, of course, to produce numerous examples where such rules were ignored. This does not, however, show that these rules were without effect; anymore than a particular breach of private law by a citizen proves that a particular domestic law is inoperable.

Some would argue that wars and war crimes are a mark of the human condition, an unfortunate but inevitable dimension of human behavior. Perhaps this is true. But the mere statement that a particular act constitutes a war crime is sufficient to show that one recognizes normative constraints on the conduct of Just War.

What this myriad of examples from different cultures and historic periods suggests is that concern for justice in war is a human, rather than simply a Christian, characteristic.

Let us now turn our attention to the Christian theologians who compiled, codified, and modified the pagan Just War Tradition to make it compatible with Christian doctrine.

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