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Unjustifiable War and the Means to Avoid It*

Published online by Cambridge University Press:  04 May 2017

Heinrich Lammasch
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Extract

In the beginnings of international law, in Grotius and his predecessors and immediate successors, discussion of the Right of War, the jus ad bellum, takes up a great deal of room by the side of the Right in War, the jus in bello. Today, however, the question, When is war justified? has almost ceased to be discussed. The so-called predecessors of Grotius, like himself and his immediate followers, accepted from the Roman law the notion of the bellum justum piumque. This concept was purely formal. To make a war a bellum justum piumque nothing more was required than compliance with the precepts of the fetial law as to the formalities of declaring war. To be sure, these, at least originally, required a resolution of the Senate and its ratification by the Centuriate Comitia. Later, however, this requisite, to which one could perhaps not always deny some material significance, completely disappeared behind the empty ceremony which the Pater Patratus performed at the boundary of the enemy country with the “hasta ferrata aut sanguinea prœusta” hurled across the same. Nay, in the war with Pyrrhus, a deserter from the former’s army was allowed to buy a piece of ground in Rome, into which the spear was flung as into hostile territory, in order that the Pater Patratus might not have to go all the way to the frontier. On these formalities, which naturally became more and more futile, Roman historians based their country’s reputation of never having waged an unjust war. Still, the fetial law had at least the one advantage of giving the adversary a 33 days’ respite for deliberation.

Type
Research Article
Information
American Journal of International Law , Volume 10 , Issue 4 , October 1916 , pp. 689 - 705
Copyright
Copyright © American Society of International Law 1916

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Footnotes

*

Translated from the German by Aloysius Wenger, of Washington, D. C.

References

1 Weiss, Le droit fetial, Paris, 1883, p. 27; Fusinato, R. D. I., XVII (1885), p. 278 ff.; Phillipson, International Law and Custom of Ancient Greece and Rome, II, 329.

2 Phillipson, II, 335.

3 Cited in the Decretum Gratiani, III, C. 23, que II, C. 2.

4 Summa Theologica, II qu. 40d. Bello, Art. 1.

5 Cf. Lamnnasch, , Lehre von der Schiedsgerichtsbarkeit in the Handbuch des Völkernchts, Vol III, Part 3, p. 35 Google Scholar ff.

6 Laplace, , Essai Philosophique sur les Probabilités, Paris, 1814, p. 3 Google Scholar.

7 The Changed Outlook, New York, 1915, p. 5.

8 Procès–verbal du comité permanent, 30 October 1915.

9 Philosophie des Krieges. Leipzig, 1907. Compare in particular, pages 13 ff., 73 ff., 335 ff.

10 Page 190, “If there were no war it would have to be invented!”

11 In regard to the Jesuit dominion in Paraguay and the consequences of its destruction, compare the judgment of Elisée Réclus, Nouvelle geographie universelle XIX, p. 497 ff., one certainly not suspected of clerical bias.

12 Politik, II, 644.

13 Viscount Morley, on Compromise, London, 1913, The Realization of Opinion, p. 201, at p. 216 ff.

14 Against Steinmetz compare also much that is pertinent in Colenbrander, Tien jaren wereldgeschiedenis. The Hague, 1915, II, 339 f.

15 Regarding the suddenness with which the Franco-Prussian War broke out, compare Higgins, War and the Private Citizen, p. 24 f.

16 Actes et docs. I, p. 133; III, pp. 165 to 176.

17 Austria-Hungary abstained from voting. III, p. 176.

18 Cf. Savornin-Lohman, , Gedachten over oorlog en vreede, The Hague, 1914, p. 67 Google Scholar.

19 For these treaties, see Lange, , The American Peace Treaties, Christiania, 1915 Google Scholar. Cf. also Beaufort, , De oorlog en het volkenrecht, Amsterdam, 1915, p. 14 Google Scholar f. See also Supplement to this Journal, pp. 263–309.

20 The treaty with San Salvador, moreover, contained the provision that during the term allowed the commission for making its report, “neither state should increase its military or naval armaments,” a standard which very properly was not retained in any of the ratified treaties, Lange, ibid., p. 15.

21 Had the German Empire accepted the treaty proposed to it by the United States, the risk of its becoming involved, during the European War, in war with America too, would have been considerably lessened in advance, because from the appointment of the commission until war became permissible a year’s time for reflection would have had to elapse.

22 New Statesman, 10 July 1915.

23 Report of von Loder and Suyling, Avant-projet d’un traité général relatif au règlement pacifique des conflits internationaux, The Hague, 1916.

24 Cf. my “ Mediationsrecht der Neutralen,” Öest. Ztschr. f. öffentliches Recht, 11 (1915), p. 214. To the literature there quoted should be added Laudon, Drie region, van het tractaat von Washington, Leiden, 1890, especially p. 77 and p. 103 ff.