The following is a whitepaper of The Jacksonian Party.
On the Laws of War and Peace by Hugo Grotius, Book I, Chapter 3 (Source: Constitution.org):
I. THE first and most necessary divisions of war are into one kind called private, another public, and another mixed. Now public war is carried on by the person holding the sovereign power. Private war is that which is carried on by private persons without authority from the state. A mixed war is that which is carried on, on one side by public authority, and on the other by private persons. But private war, from its greater antiquity, is the first subject for inquiry.
The proofs that have been already produced, to shew that to repel violence is not repugnant to natural law, afford a satisfactory reason to justify private war, as far as the law of nature is concerned. But perhaps it may be thought that since public tribunals have been erected, private redress of wrongs is not allowable. An objection which is very just. Yet although public trials and courts of Justice are not institutions of nature, but erected by the invention of men, yet as it is much more conducive to the peace of society for a matter in dispute to be decided by a disinterested person, than by the partiality and prejudice of the party aggrieved, natural justice and reason will dictate the necessity and advantage of every one's submitting to the equitable decisions of public judges. Paulus, the Lawyer, observes that "what can be done by a magistrate with the authority of the state should never be intrusted to individuals; as private redress would give rise to greater disturbance. And "the reason, says King Theodoric, why laws were invented, was to prevent any one from using personal violence, for wherein would peace differ from all the confusion of war, if private disputes were terminated by force?" And the law calls it force for any man to seize what he thinks his due, without seeking a legal remedy.
IV. Public war, according to the law of nations, is either SOLEMN, that is FORMAL, or LESS SOLEMN, that is INFORMAL. The name of lawful war is commonly given to what is here called formal, in the same sense in which a regular will is opposed to a codicil, or a lawful marriage to the cohabitation of slaves. This opposition by no means implies that it is not allowed to any man, if he pleases, to make a codicil, or to slaves to cohabit in matrimony, but only, that, by the civil law, FORMAL WILLS and SOLEMN MARRIAGES, were attended with peculiar privileges and effects. These observations were the more necessary ; because many, from a misconception of the word just or lawful, think that all wars, to which those epithets do not apply, are condemned as unjust and unlawful. Now to give a war the formality required by the law of nations, two things are necessary. In the first place it must be made on both sides, by the sovereign power of the state, and in the next place it must be accompanied with certain formalities. Both of which are so essential that one is insufficient without the other.
Now a public war, LESS SOLEMN, may be made without those formalities, even against private persons, and by any magistrate whatever. And indeed, considering the thing without respect to the civil law, every magistrate, in case of resistance, seems to have a right to take up arms, to maintain his authority in the execution of his offices; as well as to defend the people committed to his protection. But as a whole state is by war involved in danger, it is an established law in almost all nations that no war can be made but by the authority of the sovereign in each state. There is such a law as this in the last book of Plato ON LAWS. And by the Roman law, to make war, or levy troops without a commission from the Prince was high treason. According to the Cornelian law also, enacted by Lucius Cornelius Sylla, to do so without authority from the people amounted to the same crime. In the code of Justinian there is a constitution, made by Valentinian and Valens, that no one should bear arms without their knowledge and authority. Conformably to this rule, St. Augustin says, that as peace is most agreeable to the natural state of man, it is proper that Princes should have the sole authority to devise and execute the operations of war. Yet this general rule, like all others, in its application must always be limited by equity and discretion.
Here, centuries before our time, is a direct addressing of our problems in our day of the enemy we face. Hugo Grotius quickly dispenses with those who think that because warfare is unjust in its execution, that being the mayhem of the fields of battle and the rampant destruction of life with no court nor magistrate, it therefore must be unjust and unlawful. That is, however, incorrect as, to have a State, the ability to wage war to defend that State is paramount. As we, in lawful times, prefer disputes to be settled by reason and appeal to impartial judges, we find that reason and impartiality cannot be gained between Nations: any Nation or group attempting to render such a decision would have their own futures to consider and that would give immediate bias to even the most isolated and peace loving of peoples.
When we join together to form a State with a National system to interact with other Nations and to perform justice within Nations, we, as private individuals, give up the right of making personal war and settling things by rule of might. Between Nations there can be no hand-off of that responsibility to any other group as the Nation is made for the self-guidance and protection of her people. Putting that Sovereignty entrusted into the Nation into the hands of any other Nation, group of same or individual is putting the opportunity for rank injustice to be done to those in the Nation giving up such power. The lawful way for Nations to interact short of warfare is called Diplomacy, and Diplomacy has a limit to it where the vital interests of the Nation are at stake. Private war, then, is a liberty from the law of nature that we relinquish to a greater good for our Nation and to be protected by the Sovereign government (be it Monarch, Council, Prime Minister or President). While internal laws rest upon the powers relinquished to the State to form a Nation, treaties between Nations are adhered to by each Nation ensuring that other Nations keep to such treaties.
When an individual takes up Private war to execute war against other individuals or Nations and without having any Sovereign authority as a Nation backing them, they are then taking up arms not against just those they attack, but of all Nations. By taking up the law of nature again, the trust between individuals and their State to utilize war in self-defense for all of those in the Nation is put at risk. No individual relinquishes the right to defend themselves from unwarranted attack: no law made may say otherwise as the individual is always at liberty to defend themselves for survival purposes. Even immediate counter-attack to drive off such attackers is fully legitimate for an individual, beyond that, however, the legal processes of the State must intervene to look at the type and strength of original attack and organize defenses beyond that of the individual. From simple law enforcement against common criminal to military mobilization for a threat against the State, those are the just and proper ways to defend society.
XI. But neither the independence of individuals, nor that of states, is a motive that can at all times justify recourse to arms, as if all persons INDISCRIMINATELY had a natural right to do so. For where liberty is said to be a natural right belonging to all men and states, by that expression is understood a right of nature, antecedent to every human obligation or contract. But in that case, liberty is spoken of in a negative sense, and not by way of contrast to independence, the meaning of which is, that no one is by the law of nature doomed to servitude, though he is not forbidden by that law to enter into such a condition. For in this sense no one can be called free, if nature leaves him not the privilege of chusing his own condition: as Albutius pertinently remarks, "the terms, freedom and servitude are not founded in the principles of nature, but are names subsequently applied to men according to the dispositions of fortune." And Aristotle defines the relations of master and servant to be the result of political and not of natural appointment. Whenever therefore the condition of servitude, either personal or political, subsists, from lawful causes, men should be contented with that state, according to the injunction of the Apostle, "Art thou called, being a servant, let not that be an anxious concern?"
XII. And there is equal injustice in the desire of reducing, by force of arms, any people to a state of servitude, under the pretext of its being the condition for which they are best qualified by nature. It does not follow that, because any one is fitted for a particular condition, another has a right to impose it upon him. For every reasonable creature ought to be left free in the choice of what may be deemed useful or prejudicial to him, provided another has no just right to a controul over him.
The case of children has no connection with the question, as they are necessarily under the discipline of others.
XVI. As the imperfect obligations of charity, and other virtues of the same kind are not cognizable in a court of justice, so neither can the performance of them be compelled by force of arms. For it is not the moral nature of a duty that can enforce its fulfillment, but there must be some legal right in one of the parties to exact the obligation. For the moral obligation receives an additional weight from such a right. This obligation therefore must be united to the former to give a war the character of a just war. Thus a person who has conferred a favour, has not, strictly speaking, a RIGHT to demand a return, for that would be converting an act of kindness into a contract.
XVII. It is necessary to observe that a war may be just in its origin, and yet the intentions of its authors may become unjust in the course of its prosecution. For some other motive, not unlawful IN ITSELF, may actuate them more powerfully than the original right, for the attainment of which the war was begun. It is laudable, for instance, to maintain national honour; it is laudable to pursue a public or a private interest, and yet those objects may not form the justifiable grounds of the war in question.A war may gradually change its nature and its object from the prosecution of a right to the desire of seconding or supporting the aggrandizement of some other power. But such motives, though blamable, when even connected with a just war, do not render the war ITSELF unjust, nor invalidate its conquests.
In building society we give space for independence of self-decision and to do that requires that we relinquish the liberty of waging war to the Nation. Not all liberty, as Grotius points out, is positive, and the right for individuals to wage war without a given authority of a Nation to back them, is waging a negative liberty so as to remove independence gained by civil society having formed a State. To take up war is not only unlawful, it undermines the basic compacts of why we have civilization: to create a space for civil independence of action without the peril of Private war. From that all Private war, no matter what is brought up as reason for it, is unjust. And as all Nations share in the ideal of creating a civil space for independence by passing off the negative right of waging Private war, then those who wage it become a common enemy Public and Private as they put both at danger.
It is neither good nor right to confuse wars waged under just circumstances that have gone awry do to the actions of the participants and conflate that with Private war which is unjust from its core. The differences between the blamable and accountable ways wars under just pretexts are waged are wholly different than those who wage unjust war from its inception. The act of waging Private war to enforce an individual or group of same's beliefs upon others via the means of warfare is a taking of independence and liberty within civil society by utilizing the negative independence of Private war against them. From that there is no difference between that taking of independence and liberty for mere robbery, as Pirates have always done, or for the very power of the subjugation and continuation of same via the means of terror during Private war. By trying to show that bad actions during just war are the equal to those same actions taken during Private war is profoundly wrong-headed and a betrayal of the civil space and laws necessary to hold the first accountable to their actions while the latter will account having NO law over them save their own whims. Those claiming such equivalence are either ignorant of the need for civilization to have the right to warfare in the following of National needs, or they are deceitful and wishing to plunge civilization itself into ruin by making those who are accountable by law the equal of those waging Private war to enforce their will upon others with no justification at all.
The Nation of a State is not without means to address those making Private war, however, and in Book III, Chapter 2, this comes out clearly:
IV. Another method of obtaining redress for any violation of persons, or property is by having recourse to what, in modern language, are called REPRISALS, which the Saxons and Angles denominated WITHERNAM, and to which the French gave the name of LETTERS OF MARQUE, and those were usually obtained from the crown.
V. It is generally understood that recourse may be had to this method of redress not only against a foreign aggressor, but also against a debtor, if justice cannot be obtained in due time: but in NOTORIOUS cases, which admit of no doubt, this right may be enforced even beyond the strict letter of the law. For even in DOUBTFUL matters, the presumption will always be in favour of judges appointed by public authority. For it is unlikely that they should GREATLY, or WANTONLY exceed their power; especially when, if so inclined, they have not the same means of enforcing their decrees against foreigners, as against their fellow subjects. Indeed even in disputes between subjects of the same country, they cannot annul a just debt. Paulus, the Lawyer, says that a REAL DEBTOR, though discharged, owing to some informality or inability of the law to enforce payment, still remains a debtor according to the law of nature.
And when, in consequence of a judicial sentence, a creditor, under pretext of seizing his own property, had taken from a debtor something which did not belong to him though it was in his possession: upon the discharge of the debt, a doubt arising whether the thing should be restored to the debtor, Scaevola maintained that it certainly ought to be restored.
There is a difference between the two cases. For subjects, AS SUCH, cannot make any violent resistance to the execution of a sentence, which they may not deem satisfactory, nor can they prosecute any right in opposition to the law. FOREIGNERS may use violent means to enforce a right: tho' they are not justified in using such means, while there is any possibility of obtaining redress in a legal, and peaceable manner.
It is on such grounds that reprisals are made upon the persons and property of the subjects, belonging to a power, who refuses to grant redress and reparation for injuries and aggressions. It is a practice not literally enacted by the law of nature, but generally received through custom. It is a practice too of the greatest antiquity: for in the eleventh book of the Iliad, we find Nestor giving an account of the reprisals, which he had made upon the Epeian nation, from whom he took a great number of cattle, as a satisfaction for a prize which his father Nelcus had won at the Elian games; and for debts due to many private subjects of the Pylian kingdom. Out of this booty the king having selected his own due, equitably divided the rest among the other creditors.
When foreigners who either act in a way in which their Sovereign government cannot or will not address, or independently of all governments, the Nation has the ability to issue reprisals against them without having to declare any war. The act of committing Private war is a grave enough breach in and of itself, that authorization of reprisals are allowed without the greater formality of declaring war. Nations may declare such wars, as the Romans did against many uprisings and invasions by tribes or as was done by the Monarchs of England against overseas usurpers or Pirates. The power of a Nation to authorize individuals or companies of citizens to go after such people making Private war is ancient, and fully necessary as the power of a State to protect itself via National means.
Again, to those wishing to make equal Public and Private war:
VII. But on this, as well as other points, we must take care not to confound the natural and fundamental law of nations, with the civil and conventional law of particular states.
By the law of nations all the permanent subjects, both natives and settlers, of an offending state or sovereign are 'liable to suffer reprisals: but the same rule does not bind those, who are passing through a country, or only residing in it for a time. For such reprisals are a kind of pledges, like public burdens, made answerable for the public debts, from which foreigners, being temporary residents, though owing obedience to the laws, are totally exempt.
In the same manner, Ambassadors, but not those sent from an enemy to our enemies, and their property, are exempt from such conditions by the law of nations. By the CIVIL LAW too Of many countries an exception is made in favour of women and children, of men of letters, and those who are travelling for the purposes of trade. But by the LAW OF NATIONS the goods of all are liable to reprisals, as was the case at Athens, respecting the seizure of persons. In many places, by the civil law, the right of making reprisals is obtained of the sovereign, and in others, of the judges.
By the law of nations the property of all captures is devoted to discharge the debt, and defray the expenses incurred, the remainder of which, after due satisfaction obtained, and peace concluded, should be restored. By the civil law the persons interested are summoned to appear, the property is sold by public authority, and the money, accruing from thence, divided among all who are entitled to a share of the same. But these and other points of the same kind are to be learned from civilians, who are conversant in such matters, and particularly from Bartolus, who has written upon reprisals. This subject may be closed with one observation, that will in some measure tend to soften the rigour of this stern, but necessary right, and that observation is, that such as by not discharging a debt, or granting redress. have occasioned reprisals to be made, are bound, in justice and honour, to make good the losses of those, who have thereby suffered.
One of the fundamental differences between Privateers and Pirates, is that Privateers are seeking to garner the debt incurred by those who have harmed the Public peace. Either via treachery or outright Private war, those granted Letters of Marque and Reprisal are given the opportunity to hurt the property of those waging Private war: as they place themselves beyond the law, their property is forfeit to discharge their unlawful costs that they have inflicted. Such Letters are to make a balance in cost between those that harm the Nation and garnering those costs back to defray the pain and suffering inflicted upon the innocent. Pirates are mere freebooters out for themselves, while Privateers are seeking to enforce the discharge of debt by those who wish to be held accountable to NO ONE.
There is a firm and deep distinction between Public and Private war and its activities and the tools the Nation has at hand to protect its State and its people from harm. Even when the reach of the law via issuing notice of payment leading to the capture and arrest of these miscreants cannot get them, their property, goods, funds and even their very persons are not beyond the reach of war implemented in reprisal for their private actions. The Nation cannot engage in Private war, but it may issue Public reprisals via warfare to let all Nations and peoples know what is being done to confront those attacking the Nation, and that any helping them are also putting themselves at risk in doing so as war is a violent and nasty way to discharge debts.
Some time after Grotius, Emmerich de Vattel would work with others to create a full text of Law of Nations, which would become a founding text in understanding how and why Nations do the things they do. In Book III he would look at war along these very same lines:
§ 1. Definition of war.(136)
WAR is that state in which we prosecute our right by force. We also understand, by this term, the act itself, or the manner of prosecuting our right by force: but it is more conformable to general usage, and more proper in a treatise on the law of war, to understand this term in the sense we have annexed to it.
§ 2. Public war.(136)
Public war is that which takes place between nations or sovereigns, and which is carried on in the name of the public power, and by its order. This is the war we are here to consider: — private war, or that which is carried on between private individuals, belongs to the law of nature properly so called.
§ 3. Right of making war.(136)
In treating of the right to security (Book II. Chap. IV.), we have shown that nature gives men a right to employ force, when it is necessary for their defence, and for the preservation of their rights. This principle is generally acknowledged: reason demonstrates it; and nature herself has engraved it on the heart of man. Some fanatics indeed, taking in a literal sense the moderation recommended in the gospel, have adopted the strange fancy of suffering themselves to be massacred or plundered, rather than oppose force to violence. But we need not fear that this error will make any great progress. The generality of mankind will, of themselves, guard against its contagion — happy, if they as well knew how to keep within the just bounds which nature has set to a right that is granted only through necessity! To mark those just bounds, — and, by the rules of justice, equity, and humanity, to moderate the exercise of that harsh, though too often necessary right — is the intention of this third book.
§ 4. It belongs only to the sovereign power.(137)
As nature has given men no right to employ force, unless when it becomes necessary for self defence and the preservation of their rights (Book II. § 49, &c.), the inference is manifest, that, since the establishment of political societies, a right, so dangerous in its exercise, no longer remains with private persons except in those encounters where society cannot protect or defend them. In the bosom of society, the public authority decides all the disputes of the citizens, represses violence, and checks every attempt to do ourselves justice with our own hands. If a private person intends to prosecute his right against the subject of a foreign power, he may apply to the sovereign of his adversary, or to the magistrates invested with the public authority: and if he is denied justice by them, he must have recourse to his own sovereign, who is obliged to protect him. It would be too dangerous to allow every citizen the liberty of doing himself justice against foreigners; as, in that case, there would not be a single member of the state who might not involve it in war. And how could peace be preserved between nations, if it were in the power of every private individual to disturb it? A right of so momentous a nature, — the right of judging whether the nation has real grounds of complaint, whether she is authorized to employ force, and justifiable in taking up arms, whether prudence will admit of such a step, and whether the welfare of the state requires it, — that right, I say, can belong only to the body of the nation, or to the sovereign, her representative. It is doubtless one of those rights, without which there can be no salutary government, and which are therefore called rights of majesty (Book I. § 45).
Thus the sovereign power alone is possessed of authority to make war. But, as the different rights which constitute this power, originally resident in the body of the nation, may be separated or limited according to the will of the nation (Book I. § 31 and 45), it is from the particular constitution of each state, that we are to learn where the power resides, that is authorized to make war in the name of the society at large. The kings of England, whose power is in other respects so limited, have the right of making war and peace.1 Those of Sweden have lost it. The brilliant but ruinous exploits of Charles XII. sufficiently warranted the states of that kingdom to reserve to themselves a right of such importance to their safety.
§ 67. It is to be distinguished from informal and unlawful war.
Legitimate and formal warfare must be carefully distinguished from those illegitimate and informal wars, or rather predatory expeditions, undertaken either without lawful authority or without apparent cause, as likewise without the usual formalities, and solely with a view to plunder. Grotius relates several instances of the latter.5 Such were the enterprises of the grandes compagnies which had assembled in France during the wars with the English, — armies of banditti, who ranged about Europe, purely for spoil and plunder: such were the cruises of the buccaneers, without commission, and in time of peace; and such in general are the depredations of pirates. To the same class belong almost all the expeditions of the Barbary corsairs: though authorized by a sovereign, they are undertaken without any apparent cause, and from no other motive than the lust of plunder. These two species of war, I say, — the lawful and the illegitimate, — are to be carefully distinguished, as the effects and the rights arising from each are very different.
§ 68. Grounds of this distinction.
In order fully to conceive the grounds of this distinction, it is necessary to recollect the nature and object of lawful war. It is only as the last remedy against obstinate injustice that the law of nature allows of war. Hence arise the rights which it gives, as we shall explain in the sequel: hence, likewise, the rules to be observed in it. Since it is equally possible that either of the parties may have right on his side, — and since, in consequence of the independence of nations, that point is not to be decided by others (§ 40), — the condition of the two enemies is the same, while the war lasts. Thus, when a nation, or a sovereign, has declared war against another sovereign on account of a difference arisen between them, their war is what among nations is called a lawful and formal war; and its effects are, by the voluntary law of nations, the same on both sides, independently of the justice of the cause, as we shall more fully show in the sequel.6 Nothing of this kind is the case in an informal and illegitimate war, which is more properly called depredation. Undertaken without any right, without even an apparent cause, it can be productive of no lawful effect, nor give any right to the author of it. A nation attacked by such sort of enemies is not under any obligation to observe towards them the rules prescribed in formal warfare. She may treat them as robbers,(146a) The inhabitants of Geneva, after defeating the famous attempt to take their city by escalade,7 caused all the prisoners whom they took from the Savoyards on that occasion to be hanged up as robbers, who had come to attack them without cause and without a declaration of war. Nor were the Genevese censured for this proceeding, which would have been detested in a formal war
These texts were well known by the founders of the United States and their drafting of the Declaration of Independence, Articles of Confederation and Constitution all reflect these views on warfare. Lawful and Illegitimate war or Formal and Informal war have two entirely different sets of reasoning behind them: one is for the utilization of the Nation to ensure the needs of the State and the other is to meet personal ends via subjugation of others. That is why those who wage wanton and unaccountable Private war get so little benefit of the civilization they have put at peril: they have used negative liberty to erode the civil space created by relinquishing the right of war to the State so that it may be utilized for the common good.
When we look at those that have attacked us as individuals or a Nation without backing by any Sovereign power, we then see a list of individuals and groups going far beyond al Qaeda.
We see the people captured by FARC to render political gains for their own cause. They are the enemy.
We see Hezbollah having killed our Marines and French soldiers in Lebanon, plus staging bombings of our Embassy in Beirut. They are the enemy.
We see HAMAS who have taken Americans hostage in their own fanatical quest for destruction and power. They are the enemy.
The list of these enemies gets longer with each and every group utilizing the weapons of war to kill, capture, ransom, extort, blackmail or just gain pure power for their cause. That includes the IRA, ETA, Japanese Red Army, Tupac Amaru, Shining Path, Abu Sayyaf, PLO, GIA. Many of the worse seek out Islamic causes, but they are not alone and the causes vary by group, but none of them are legitimate as they refuse to operate within the civil arena to air their grievances via lawful means.
They are all traitors to mankind's attempt to build a lawful form of government and regularity of discourse amongst Nations via governments. They put at peril our independence each time they take to warfare to try and expand their power for their own reasons. That is why our hearts cry out for the innocent attacked in Somalia, Darfur, Burma, India, Iraq, Chechnya, Bosnia, Serbia, Israel, Spain, France, United Kingdom, Ireland, Colombia, Argentina, Mexico, Philippines. Very few Nations have not felt the lash of those wishing to enforce their will upon peoples by tearing down the independence garnered by granting the right to wage war to Nations so that a peaceful civil space can be opened.
They are all my enemy. I do not want them to be so, but their actions put them in that position. They can stop doing so and submit to civil authority and justice to find legal means to express their dissatisfaction with the world. At any time they can do so and become civilized.
If we fetishize on one of these groups, to the exclusion of others, we miss the erosion of civil society and the advance of the law of nature via negative liberty to freely wage war and be held unaccountable in doing so. Until they do so they have no legitimate grievance, just a raw lust for power to enforce their will upon others for no reason that will help anyone. And often it is those that they claim to defend that end up being killed in their quest for that power, which further makes their acts barbaric.