Soldiers and the justice of a war

Where conscription exists or soldiers have already enlisted before the outbreak of war, they are not bound to make inquiries about the origin of the war in order to satisfy their consciences of its justice; they may presume that their country is in the right unless it is evident that it is in the wrong, and in doubt they are bound to obey the commands of their lawful superiors. If the war is clearly unjust it only remains for the conscientious soldier to abstain from inflicting unjust damage on the enemy, otherwise he will be a co-operator in injustice. Volunteers who had not enlisted at the outbreak of war are bound to satisfy their consciences as to its lawfulness before they take any part in it, just as they are bound to form a morally certain conscience about the lawfulness of any action that they undertake, as we saw in the Book on Conscience.

Can soldiers wage war with doubt concerning the justice of the war? - Either the matter concerns soldiers who are subjects; or non-subjects; or hired men. If the 1st, they are bound to obey the Prince commanding, until they are altogether certain concerning the injustice of the war; for subjects are bound to obey where sin is not certain. Then, in the proposed case, they must presume the war as just, where the contrary does not clearly appear. Namely, the right of the superior possesses, so that, Augustine teaching, "perhaps the injustice of commanding makes the king guilty, but the order of serving shows the soldier innocent." L. 22 cont. Faust. c. 75.

If the 2nd, they must not fight unless they become certain of the justice of that war; for since the matter concerns the damage of a third party and indeed most grave damage, it cannot be inflicted on him before there is certainty concerning the injustice of the possessor. If the 3rd, either they were already hired before the war was declared, and the same thing must be said as of subjects; or afterward, and what was said of non-subjects holds. Luc. 3:14; L. 407, 408; Ithur. Cas. 40, n. 16; Tambur. Explic. Dec. l. 6, c. 1, par. 1, n. 9; Lugo de Iust. et Iur. d. 10, n. 144; Laym. l. c. n. 8. In an evidently unjust war, soldiers, although compelled, cannot fire upon enemies and kill or wound them. Yet if they are attacked by enemies who, if they handed over their arms, would be unwilling to grant pardon, then they can defend themselves with arms against them, as against unjust aggressors. Tambur. in Decal. l. 6, c. 1, section 1, n. 9.

359. 1. Duties common to both. (a) In time of a just war commanders and soldiers are bound to serve the fatherland, even with danger to life, because the public good demands this. Hence they cannot desert military service, and deserters ought to return to camp; but those who would flee to the enemies and render them any help whatever would be traitors and guilty of a grave crime.

(b) If the war is certainly and evidently unjust, it is not licit to serve as a soldier, nor to kill enemies in battle; for unjust aggression and the killing of an innocent person are something intrinsically evil. But in practice this rarely happens; for even when war is unjust in itself, for the most part it does not seem to be such to soldiers, who otherwise neither are accustomed nor generally are able to inquire concerning the legitimacy of war: for this is left to the supreme authority and to the Legislative Assembly.

(c) In doubt whether war is just, soldiers already hired, or otherwise called under the banners by supreme authority, are not bound to inquire concerning the legitimacy of the war, but can presume that it is just. Otherwise it must be said of foreigners who voluntarily wish to enter the army; they cannot serve as soldiers unless first the justice of the war is clear; for there is question of inflicting most grave damage upon another, and they cannot freely expose themselves to the danger of killing innocents.

360. 2. Duties of commanders. (a) Upon them lies the duty of using all legitimate means for bringing back victory, and therefore of following the rules of military art in the best way they can, - of watching over discipline, - of taking care that, insofar as this can be done, nothing be lacking to soldiers either as regards the health of the body or as regards the salvation of the soul.

(b) They ought to follow the international laws of war, to restrain useless plunderings, devastations, and the killing of innocents by suitable penalties.

(c) They can indeed exact from inhabitants those things which are necessary for the support of the army, but they ought to pay the price of these, either immediately or after the war.²

² "Prestations in kind shall, as far as possible, be paid for in cash; if not, they shall be recorded by receipts" (Acte de la Haye, art. 52).

361. 3. Duties of soldiers. (a) Soldiers ought to obey commanders, and not begin a hostile action unless the same command them.

(b) Since today the right of plunder is not acknowledged, they cannot make the spoils of enemies their own, nor a fortiori take away the goods of private persons.

Things to be noted beforehand. 1. Distinguish between hired soldiers, volunteers, who obligate themselves to serving for pay; conscripted soldiers, who are called to military service by universal or particular conscription; finally soldiers who hire themselves out in place of others.

2. Young men destined for military service can be considered either as to be conscripted, or as staying in camps, or as actually occupied in war.

971. PRINCIPLES. I. Soldiers in war are held concerning all damages which they have inflicted through private action. But in a war which they know to be unjust, each is held, in proportion to his own influence, concerning damages inflicted by the army itself. Thus of itself; but ordinarily they are excused, whether because of ignorance, or because of fear of a graver evil if they refused to obey, or finally because of physical or moral inability of restoring (cf. n. 1017).

II. Princes and commanders are held primarily, and in solidum, concerning the whole damage inflicted by the army. The reason is that they themselves were the true mandators, or at least because they did not impede the damaging action, to which they were held by office (cf. nn. 978, 988). See St. Alphonsus, III, 407, 580; Gousset, I, n. 1003.

972. III. Only hired soldiers are held from strict justice to military service; but it is not certainly established that young men called to military service are obligated in conscience to undertake the duty. The first is clear, because there is a contract. - As regards the second, authors disagree concerning the justice and the nature of the law which is named from conscription.

Some say that it is unjust, at least under this head, that it is opposed to distributive justice, since only families which have sons suitable for military service are compelled to undergo the hard yoke. - Others indeed deny that it is unjust, at least among nations for which soldiers hired by stipend cannot suffice, but affirm that it must be numbered among penal laws, because delinquents are most gravely punished. - Finally, others, and their opinion seems to be the more common, teach that the law of conscription indeed obliges in conscience, but only from legal justice. Cf. Pruner, de Jure, P. II, § 72, II; Schindler, II, p. 799.

From these things you will gather: 1. Young men who cleverly avoid military service, for example by lies, exaggerated words, previous mutilation, etc., probably are not held to restore: a) neither to the government, in the case in which others do not supply their places, because it is certainly more probable that the law does not oblige from strict justice; b) nor to others who somewhere supply their places, because it is not established that the aforesaid arts are at once unjust and of themselves efficacious for inflicting damage on them; otherwise he would be held to restore who, by not living rightly, has so weakened his powers that he cannot serve as a soldier. The truly efficacious cause of that damage is the will of the legislator who, when one fails, calls another to arms (cf. n. 949, Condition 2).

2. Young men who by bribes corrupt physicians or magistrates so that they may be declared unfit by them: a) certainly are held to no restitution if all young men fit for military service are assumed, since damage is inflicted on no one; b) but more probably they must restore in the case in which, when one is exempted, another must succeed him; for they are cooperators of formal injustice, for they efficaciously excite public officials to inflict unjust damage on another. For he who by law is not compelled to serve as a soldier has a strict right to preserve liberty. Nor may you say that money is licitly given to redeem an unjust vexation; for here the injustice of the law is not established, and therefore neither the injustice of the vexation, unless the matter is with clerics, or others, who by right are immune from that law. Thus Gousset, I, n. 1002; cf. Bonal, Tr. de Just. et Jure, n. 337; Haine, t. II, q. 196; Vermeersch, de Just., n. 129; cf. also Nouv. Rev. Theol., vol. 37, p. 381. Yet others opine that to corrupt officials or physicians is not an induction to an action to which they themselves, namely officials or physicians, would be held from commutative justice. See Lehmkuhl, I, n. 1177. At least the obligation from the title of strict justice is not established.

In practice one must act cautiously, both because most do not advert to the damage and are not guilty of formal injustice, and because very few would obey admonitions.

973. IV. Soldiers who desert the army sin, and are held to return. This is required by obedience or legal justice, and somewhere by the religion of an oath by which they obligated themselves to soldiering for the time prescribed by law; or even by commutative justice, if by a free pact they hired themselves out.

Yet they are excused: 1. if the war is certainly unjust; for then they are held to flee away, if they can (cf. n. 750, Hence, 2); 2. if they would encounter grave danger to salvation, for example if the means of confessing were not available in the article of death, etc.; 3. if, returning, they would be punished with death or other most grave penalties.

It is asked. To what is he held who had hired himself out in place of another, and then deserted military service?

Resp. He is held of himself: 1. to restore the price accepted, because he did not stand by the pact; 2. to repair the foreseen damage, if he for whom he had hired himself out is compelled to undergo military service. But if no damage and no danger of this kind is incurred, restitution does not seem to be urged, because the hirer intended nothing by the pact except his own liberation; if therefore the liberation remains, the hired man does not commit injustice, nor properly break the pact.

III. Soldiers are especially to be questioned:

1. Concerning blasphemies and undue oaths.

2. Concerning omissions in fulfilling the precepts of the Church, especially concerning Sunday Mass neglected, if they were not impeded by reason of military service.

3. Concerning quarrels and duels; if these are entered by agreement, excommunication is incurred.

4. Concerning lust, and indeed not only concerning pollution, but also and especially concerning fornication, or even concerning stuprum, and sometimes, especially among cavalrymen, concerning sodomy.

5. Concerning immodest, depraved amusements or readings.

6. Concerning thefts and injustices.

7. Concerning damages unjustly inflicted.

This especially holds for time of war. On which occasion it can be asked: whether they have not harmed the innocent, have not seized the goods of private persons or inflicted damage upon them, have not occupied goods without necessity of sustenance or legitimate requisition of the leader, have not destroyed things belonging to another without necessity, etc. For those things which they would unjustly seize or destroy, they would be bound to restitution.

275. Corollaries.* — 1. He who declares war without a just cause sins gravely: first and formally against charity, because he disturbs peace, which is an effect of charity; at the same time, however, against justice, on account of the unjust damages which war is apt to inflict.

2. War per se and from its nature cannot be just on both sides, namely, materially or objectively, because right cannot belong except to one or the other, since contrary rights do not exist concerning the same thing; nevertheless it can be just on both sides subjectively and formally, but per accidens from invincible ignorance or good faith.

3. In doubt concerning the justice of the cause, recourse must be had to an amicable composition or transaction, or to the arbitration of others, especially of the Supreme Pontiff, or to an international tribunal of peace or a society of nations; — but if the other party rejects recourse or refuses to obey the sentence given by the arbiter, there is now a certain injury on account of which, if the cause is proportionate, it is licit to wage war.

4. In a just war, commanders and soldiers called by precept or legitimately hired are bound to serve the community to be defended, even with danger of life: for the common good demands this. Hence they cannot desert; and per se deserters are bound to return to camp; but those who would flee to the enemy to help them would be traitors guilty of a most grave crime.

5. Soldiers — not so the learned and theologians — ordinarily are not able to judge concerning the justice of a war, nor are they bound as far as possible to inquire concerning it, unless the contrary would seem very probable, but they can presume it to be just. Even in positive doubt concerning the justice of the war, subjects who have been ordered or previously enrolled can and are bound to serve as soldiers, because presumption stands for the superior commanding; — non-subjects, or those not ordered or not hired, but free soldiers who of their own accord wish to fight, cannot enlist unless morally certain of the justice of the war, lest, namely, they involve themselves in the danger of inflicting grave injuries.

6. In a war plainly unjust, no one, neither subjects nor foreigners, can fight; because they would be cooperators in injustice. Hence they ought to withdraw from the war; but if they cannot do so without grave danger, they can exercise only actions indifferent of themselves, but they ought to abstain from fighting and hostile acts, and to surrender themselves to an enemy soldier whom they cannot avoid by flight; but if the enemy does not consent to this and nevertheless attacks, he himself now seems to become an unjust aggressor against an innocent man, and consequently the latter then probably can defend his life.

7. Today, on account of their greater security and the common good, it is strictly prohibited that merely private men, during war, involve themselves in military affairs or snatch up arms; and transgressors of this statute expose themselves to most grave penalties, even of death, which is not inflicted unjustly.

You Will Ask. Can soldiers wage war with doubt concerning the justice of the war?

Response. If it concerns a subject soldier, or even a soldier hired before the war was declared, he can, indeed he ought to obey where the war is not evidently unjust, because in doubt one must stand for the superior. But if it concerns a soldier not yet hired, he is bound to inquire concerning the justice of the war, nor can he hire himself out in doubt concerning its justice. The reason is that no one can cooperate toward despoiling someone of a thing which he possesses, unless he is certain that it is unjustly possessed by him. - Cf. St. Alphonsus, n. 408.¹

¹ Cf. Addenda, p. 1112, n. 58.

You will ask 2° whether, in doubt about the justice of a war, it is licit to make war.

I answer. 1°. If reparation of injury is at stake, a prince doubtful about the justice of the war cannot declare war; because in doubt, especially of such moment, the safer part must be chosen. If recovery of possession is at stake, the condition of the possessor is better in doubt, and therefore war cannot be moved against him. If neither possess, it is licit to bring war against him who refuses to divide the thing pro rata of the doubt.

[The true reason why, in doubt about the justice of a war, it is not licit to declare it, is because no one acts licitly, when the act can be good or evil, unless he be morally certain of the honesty of his action, as was explained and proved in the treatise on Human Acts, dissert. V, on Conscience.

When neither possesses, and the right is doubtful, it does not seem that this one or that one should be compelled by violence and arms to divide the thing pro rata of the doubt, because, proceeding thus, the one or the other would be despoiled of his right; but the titles invoked on either side are to be examined and weighed, and if the parties cannot compose their litigation between themselves, they ought to commit the decision of the cause to the arbitration of another, whose sentence they promise themselves to stand by. But if the contenders should come forward voluntarily to agree upon dividing the litigated thing between them, so that each abandon part of the right which perhaps belongs to him, this manner of proceeding is certainly to be commended, whereby justice is fully satisfied, but it seems nowise to be imposed.]

I answer. 2°. Those who are subjects of a warring prince, when ordered, can and ought to enroll themselves in the militia, and enrolled to make war, even if they doubt of the justice of the war, forming however for themselves a practical judgment that they may licitly obey and make war; because 1° the superior has a certain right of commanding, nor is he stripped of his right by the subject's doubt. Ergo the subject is bound to obey; for the right of commanding and the obligation of obeying are correlatives. 2° From denial of obedience, while its cause manifest cannot be assigned, authority is enervated in superiors, and the whole government subverted. From these principles therefore the subject can form the practical judgment that when ordered he may licitly make war. Confer what I wrote dissert. V on Human Acts, art. 2, You will ask 3°.

I answer. 3°. Those who are not subjects of the warring prince, in doubt about the justice of the war, cannot serve as soldiers; because by not soldiering they injure no one, since they have not the necessity of obeying like the subjects of whom in the preceding answer; but by soldiering they expose themselves to inflict grave injury upon another prince. The same seems altogether the reason concerning the subjects of the warring prince, if, not ordered, but of their own will, they serve for pay.

However, since the causes of wars are often not manifest, and the justice of a war also often is obscure even to theologians and jurists themselves, from this answer, true elsewhere per se, it would follow that almost all soldiers were blameworthy; for who among them, whether subjects or not, inquires into the causes and justice of the war? Therefore several weighty authors judge that, if their doubt be merely negative, insofar as they have no reasons for or against, and from the probity and prudence of the prince and his counsels they can persuade themselves that they would not move war unless it were just, they may licitly serve.

But those who are ready to make war whether the war be just or unjust, are certainly in the state of damnation, because of the will to make war even unjustly.

First it is certain that Clerics constituted in sacred orders, and monks even if Laymen, are prohibited by ecclesiastical law. Concerning Monks it is had in the canon Eos qui, d. 20, question 3. Concerning Clerics, 23, question 8, especially the canon Clerici, and the canon Quicunque ex clero. So D. Thomas and others.

That these, however, can fight by the license of the Pontiff in a case of necessity, Covarruvias notes Relectio on the Clementine si furiosus, Bannes article 2, Cajetan in the same place, Valentia point 4.

The reason is; because then the ecclesiastical law yields to the natural obligation. Yet the cited Canons do not forbid clerics to be present, to exhort, to help with spiritual aids. See D. Thomas article 2, Valentia at the place cited, Molina disputation 108, Suarez tomus 5, disputation 47, section 6, Tannerus number 80.

Therefore if Clerics fight without due justice and license, they become irregular, as is gathered from the chapter De caetero, extra on homicide, provided that someone is there killed.

Indeed, even if they merely exhort in an unjust war, it is gathered from the chapter Quod in dubiis, extra on penalties, and the chapter Clericus, extra on homicide.

Therefore if Clerics fight in a just war by the Pope's license, even if they kill, they do not become irregular.

But if they fight in a just war, yet without license, they still do not incur irregularity, according to the common opinion — Sylvester under the word Bellum, question 3, 2, Covarruvias at the place cited, part 2, § 3, number 9, Castro book 2 on the penal law, chapter 14, Valentia at the place cited, point 4.

The reason is, because odious laws are not to be extended. Laws burden with irregularity only illicit homicide and the killing of public ministers of justice.

Nor is it credible that on account of an act to which one is bound by the law of nature one should incur an impediment to one's own office.

You will ask, at what time war is lawful. This is asked on account of feast days; it is certain, indeed, that on these days defensive war is lawful, as is had in 1 Machab. 2. It is proved: for if it is lawful to draw the ox out of the pit, as is said in Luke 14, and to heal a man, as is said in John 7, why would it not be lawful to fight for the preservation of the Republic? So Nicholas also decrees, the canon si nulla, 23, question 8.

It is also lawfully done when it is necessary to the end of the war, namely to victory. This the aforesaid Nicholas affirms, that with urgent necessity it is lawful.

It is nevertheless not a mortal sin, outside necessity, to fight on a feast day, provided Mass is heard, as Cajetan says, according to Valentia and Tannerus number 87, adducing Bannes here, and Molina disputation 111.