El Conocimiento de los Resultados

In preceding chapters I discussed the different views of just war theory that were developed from the time of St Augustine in the 4th century through to Kant’s critique of the just war concept in the 18th century. While I hope that it is already clear that a profound shift in thinking occurred with Grotius’ On the Rights of War and Peace I would like to turn now to a previously unexplored result of Grotius’ rethinking of international relations. Grotius, as I explained in chapter 2, turned the logic of just war theory on its head, moving from a top down model of authority to a top up model. Where the classical model of just war theory gave kings, princes, and religious leaders the right to declare war in order to pursue their interests against hostile neighbours and their own subjects, Grotius’ theory gives individuals the rights to defend themselves and then extends this right to political leaders. If normal conditions apply and one state attacks another, war is declared by the head of state who has been charged with the task of defending the interests of his constituents. If, however, the civil condition is not instituted for some reason, individual citizens may have no choice but to defend themselves and their interests, in other words, they must declare war on behalf of their nation. This is precisely what Grotius argued for in defending the actions of his cousin, Heemskerck whose ships attacked a Portuguese vessel as it was anchored in a Singapore harbour. The details of the attack are such that under the codes of conduct for warfare of the day, Heemskerck did not have the proper authority nor the proper conditions for declaring war and seizing the spoils of the Portuguese vessel. Scott Shapiro and Oona Hathaway argue in a forthcoming book that Heemskerck would have been considered a pirate under the international law of the day and as such he would have been considered an enemy of all people. Moreover, the prizes he captured would have been considered the rightful property of the Portuguese. This is:

Because pirates did not have the legal power to go to war, they were not legally permitted to kill or take property. If they did, they could be prosecuted for murder and theft. Indeed, a pirate was considered an “enemy of all mankind” (hostis humani generis) and could be punished severely not only by their victims, but by anyone in the world.220

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In order to legitimize the attack that Heemskerck carried out against the Portuguese ship, Grotius argued that Heemskerck was acting as a soldier in a just war owing to previous transgressions of the Portuguese and that because his cause was just the prize gained in the war rightfully belonged to the victor.221

However, it was far from clear that Heemskerck’s cause was actually just. The Portuguese had not attacked him, so he was not acting in self-defence. Instead, what Grotius argued was that the Portuguese were responsible for atrocities against the local population as well as against the Dutch, who were simply trying to engage in peaceful trade. Grotius frames the attack against the Portuguese as an attack against their inhumanity. He talks of the “savagery” of the Portuguese as well as their:

fierce insistence that so vast a portion of the world…should be dedicated exclusively to promoting the wealth, not to say the luxury, of a single people, while lying in great part neglected and useless, although this same territory would suffice to keep many nations engaged in commerce and supplied with sustenance?222

Grotius describes the savagery of the Portuguese by reporting that:

…the Portuguese are regarded in those regions not as merchants but as foreign robbers, destructive of human liberty and aflame no less with avarice than with lust for dominion, so that no one associates with them any more than is absolutely unavoidable. For when they first came to that part of the world, they established colonies and strongholds, and then (the natives having been insufficiently perceptive as to the ultimate objective of these enterprises), they reduced all nearby territories to a state of slavery. Presently, by participating in the civil wars of the East Indians, wars to a great extent instigated by the Portuguese themselves, the latter acquired a share in the victories; whereupon they turned the power that had been increased through these wiles against the very persons by whose aid they had been rendered victorious.223

Furthermore, Grotius reports that the Portuguese engaged in:

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Ibid., 21-22.

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Hugo Grotius, Commentary on the Law of Prize and Booty, ed. Martine Julia van Ittersum, Natural Law and Enlightenment Classics (Indianapolis: Liberty Fund, 2006), 258-59.

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Unparalleled treachery, the mangling of women and children belonging to the households of native potentates, the disturbance of [East Indian] kingdoms through the poisonous activities of the Portuguese and abominable cruelty displayed toward both subject and allied peoples.224

By characterizing the Portuguese as having engaged in “abominable cruelty”, Grotius is able to make the case that Heemskerck’s attack of the Portuguese ship was a just war in defense of the human rights of the native populations and the rights of the Dutch, among other nations, to engage in free trade. Grotius’ modern conception of individual rights was central to both the right of the soldier to declare war on behalf of his nation, as well as the cause for which his war was fought.

Making the individual central to his account of just war theory opened the way for Grotius to focus on the principles of jus in bello. If individuals are now able, to be the judges of whether or not they can engage in warfare then the moral burden of fighting justly also falls to these same individuals. That is not to say that soldiers commissioned to fight in wars will always be the judges of the justness of the war, in conventional situations where two nations are at war the declaration of war would still normally come from the head of state. However, as the Heemskerck example shows, sometimes soldiers will have to make decisions regarding jus ad bellum categories like just cause, and they are certainly the correct agents to be making judgments regarding jus in bello, which is more properly theirs to monitor from their positions on the ground.

We tend, nowadays, to think of wars in extremely negative terms owing to the huge stakes involved and the efficiency of advanced weaponry. However, warfare in the past, and especially naval warfare, was far more limited in scope and aim than warfare today. That is not to say that it could not be extremely costly and bloody. There were wars in Europe that ravaged whole segments of the continent, like the Thirty Years War, and brought with them death due to military action and the spread of diseases that would kill huge segments of the population. However, the general pace of warfare and the reasons for engaging in it were sometimes less far-reaching than the goals of something like the 30 or 100 years wars. Disputes arising between differing national interests over

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small pieces of disputed territory or access to seaways beneficial for trade were routinely fought without escalating into total wars for domination over populations necessitating regime change. We no longer live in the kind of world that Grotius lived in. Notions of territorial sovereignty and the standards that need to be met for a war to be considered just have made limited forms of warfare extremely rare. The signing of the Kellogg- Briand Pact by many of the world’s nations in 1928 changed the political landscape such that only wars for defensive purposes and defense of allies were considered just. The parties to the pact agreed to the following articles:

ARTICLE I

The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.

ARTICLE II

The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.225

The countries in question adopted these articles, yet they failed miserably at creating conditions for a lasting peace between one another. However, what this pact did manage to achieve was a change in the discourse and legal status of the violent use of arms between nations. While a modern conception of just war theory would have allowed for disputes between nations to be resolved by armed force if no other methods were proving viable, since the beginning of the 20th century anything other than self-defence has been deemed illegitimate and worthy of punishment at war tribunals following acts of aggression. This has made politicians frame the wars they intend to engage in in terms of self-defence. Public support for wars has also dwindled unless a reasonable case can be made that they are necessary for self-defence. Kant, no doubt would have seen this transition in a positive light. In the next section I turn to where Kant and Grotius would

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have agreed on matters of international relations and examine an alternative to Kant’s program for perpetual peace, namely a realist balance of power situation with a global hegemonic power, and finally link this to the democratic peace literature in an attempt to show how the democratic peace is in fact shaped by realist considerations.

5.2 Kant, Hegemonic World Power and the Democratic