Prof. Joseph Joblin, S.J.
AT THE ORIGINS OF HUMANITARIAN LAW: THE ATTITUDE OF THE HOLY SEE
Prof. Joseph Joblin, S.J.
The Pontifical Gregorian University
War has always had two faces: one marked by violence, the other by compassion. While in the 17th century, the jurist Pufendorf condemned the conventions which "limit the acts of hostility" because they prolong war and a century later, Clausewitz asserted that the logic of war was to go to extremes and Prof. Lampredi rejected in the name of natural law the opinion which sought to impose a limit on the use of force, others continued to maintain that the respect due to man did not authorize the indiscriminate use of any means of combat; reinterpreting in their own way certain elements of the first international humanitarian law imposed by the Church in the Middle Ages and particularly, the measures formulated by theologians with reference to jus in bello. Indeed, such attempts are so akin to the human spirit that the warlords, were frequently brought to sign humanitarian truces. A German author had the curiosity to estimate their number; he identified 300, until 1873.1
The humanitarian Ideal
A new awareness of the importance to be given to humanitarian aspects emerged in the 19th century; but while the legal system for the limitation of violence within the theory of a just war depended on a religious anthropology, the one that was to emerge was supported by rational considerations. Thus the Church was no longer expected to be its moral guarantor for it was believed that freely signed agreements would have such an obligatory force between civilized States that they would suffice to guarantee peace. This idea had a certain influence on humanitarian policies In the 19th century. Different religious orders had, always sought to give aid to war victims, whichever side they belonged to. Their motivations were religious and in the case of the Camillians, founded by St Camillus de Lellis in the 16th century, they wore a red cross on their religious habit. From the 19th century, humanitarian initiatives were justified by what was referred to as a humanist view of society, in other words one that was alien to any religious or transcendent reference as a foundation for their obligatory nature. Henceforth, humanitarian concerns found their justification in the attention each human being deserves as such and led to States being asked to sign agreements to this effect; thus, in 1764, Mr de Chamousset had already requested the establishment of a general convention on the medical care of the wounded.
The humanitarian wave grew considerably in the second half of the 19th century. The sisters of charity were no longer alone in caring for the wounded in the Crimean. War (1854-1856). Florence Nightingale had mobilized a group of volunteer nurses to go to the front; in 1861, Dr Palasciano speaking in Naples proposed a neutral status for medical personnel tending the wounded as well as for their equipment; in the same year, a booklet was published in Franco on the same subject by Henri Arrault; Francis Lieber an emigrant to America, was given the task in 1863 of including the customary law of war in the Instruction pour les armees en campagne des Etats-Unis; but this was a document that was binding for one country alone. The merit of the Swiss Henry Dunant was that he had an international convention adopted on this subject.
Dunant had the opportunity of inspecting the battlefield of Solferino in 1859. He was struck by the fact that the great misery of the wounded was compounded by the lack of medical coordination. Not only did he record his impressions in his book, Souvenir de Solffirino (1861), but he had the tenacity, with the help of a few Geneva personalities, to set international action in motion. Henceforth, the humanitarian question was no longer simply a matter left to private initiative, mostly of religious origin, but a matter of lay humanism for which the States would be responsible.
The Geneva Convention of 1864
The Geneva Convention of 1864 did not question the legitimacy of war; it limited some of its damaging effects. Thus, when Pius IX, as head of the Papal States, was invited to participate in its formulation he declined. As Cardinal Antonelli, Secretary of State, wrote to Mons. Boveri, his ad interim charge d'affaires in Switzerland: "Since the Pontifical Government is peaceful by nature and alien to warlike enterprises, it would not be able to make an important contribution to the discussions. However the Pontifical Government will not fail to appreciate the measures that will be established at the meeting itself, nor will it fail for its part to promote the measures that may be incumbent upon it for religious assistance to be made available to the suffering in such supreme moments".2 This last observation reveals the specific angle from which the Holy See approaches the humanitarian question; without minimizing the importance for the States of establishing rules to improve the condition of the wounded, it intends to limit its intervention to its own viewpoint, that of religious assistance to the armies, which it feels is not being taken into consideration. As Cardinal Antonelli wrote to the President of the Swiss, Confederation: "The Government of the Holy See, as you know, given its peaceful nature is far from promoting wars ... cannot in any way be compared with other governments, and it is for this reason that it sees no need to be represented..."3
By refusing to approach humanitarian questions with the same attitude as the governments whose concerns were primarily, national, Pius IX disappointed the European governments which felt how close the offensive of the Piedmontese against the Papal States was growing.4 They, especially Napoleon III, therefore put pressure on Pius IX to withdraw his refusal. The negotiations, which began are extremely interesting for they show how concerned the papacy was for the specific role of the Church, as a spiritual power, to be recognized in international life. The situation which confronted pontifical diplomacy was to some extent a new one; the long history of Christianity had always portrayed humanitarian aid as a manifestation of charity and now this new mentality recognized it as a value in itself. The decision that Pius IX would take in 1868 to adhere to the convention was to inaugurate a new form of presence for the Holy See in international life. Its place was to be recognized "above all so that spiritual assistance may be brought more easily and more regularly"5 to the campaigning Armies.
The disappearance of the Papal States and the opening of the Roman question did not make the Holy See disappear from the international humanitarian scene. It this troubled period was marked by its exclusion from the international conferences because of the Italian Government's opposition, the States did not refrain from using its diplomacy on various occasions to support their efforts, particularly with a view to strengthening humanitarian law. The most striking example of this ambivalent attitude on the part of the States is illustrated by the Holy Sees participation in the preparations for the Hague, Conference in 1899.
The Hague Conference In 1899
The adoption of the 1864 Convention had given a start to the formulation of humanitarian law. As early as November 1868, 20 countries meeting in St Petersburg, approved a Declaration in which they stated that the imperatives of war should yield to the needs of humanity; a Brussels Conference (July 1874) tried in vain to draft new rules for conducting hostilities; in Oxford the Institute of International Law published in 1880 a Manual of laws for land-warfare codifying the existing rules and drafted a Project, for a Convention to guarantee a sanction for the Geneva regulations (1895). These were some of the initiatives that created a favourable climate for the great Hague Conferences in 1899 and 1907. The Holy See wasspecifically associated with the first of these. It had no part in the preparation of the practical measures by which the States were to limit their arms, but its support was requested by some non-Catholic States seeking to benefit from its moral help.6 On 30 August 1898, Count Tcharykov, the Tsar's Minister Plenipotentiary to the Pope, gave Cardinal Rampolla, Secretary of State, the memorandum in which Count Murayev, Russia's Minister of Foreign Affairs had suggested to the different States that a disarmamentconference should be held. He wished that the Holy See "would accept to support with the full strength of its moral authority the great work of the consolidation of peace". This spiritual mission that wasexpected of the Holy See was reiterated by Queen Wilhelmina of the Netherlands in a letter to Leo XIII of 7 May 1899 requesting the moral help of the Holy See for the success of the meeting. In his reply the Pope stated: "We believe that it is a specific part of our task, not only to provide moral help to such undertakings, but also to cooperate in them actively: because their objectives aremost noble by nature and intimately linked to our august ministry which, through the divine Founder of the Church and by virtue of age-old tradition, in some way includes the function of mediator for peace".7 While the Holy See was unable to participate effectively in the meetings at The Hague due to Italy's opposition, Leo XIII's letter was read out at the final session, and hence features In the Acts of the Conference.
The humanitarian action of the Holy See In the First World War
The war of 1914 gave Benedict XV the opportunity to transform the humanitarian concerns of the Church into practical initiatives, as can be seen from the round-table organized by the Pontifical Commission for History8 at the Congress of Historical Sciences in Madrid 1992. As the various contributions showed, a real collaboration was established at that time between the warring factions, the Neutrals, the Red Cross and the Holy See. Among all the initiatives of that period, we mention the creation of the Provisional Bureau for Prisoners of War for the gathering and distribution of news of missing and captured soldiers. Started in the beginning of 1915, it handled about 800,000 cases of prisoners or captives. Such efficiency was due to the fact that the Holy See with its Dioceses, constituted a real network of information throughout the world. Some Dioceses even created secretariats modelled on the one in Rome, as was the case in Fribourg, Switzerland. The latter actually served as a base for the Holy See's negotiations with the Swiss Government. The magnitude of this aid and the mobilization of goodwill it implied greatly contributed to the inclusion of what was to be called the protection of human rights in the objectives of contemporary diplomacy.
The 19th century will go down in history as the one in which States and peoples became aware of their responsibility for solidarity as regards humanity. Societies discovered that it was necessary for the "need for humanity" to govern human consciences if their potential for destruction was to be controlled (Hague Conference, 1899). But its compulsory force can only be respected if the moral and religious powers find their way to the hearts of individuals to convince them to overcome their violent instincts. It is not an exaggeration to say that the Church, as the moral conscience of humanity, has been involved in these efforts, through the Holy See.9
Notes
1. A. Pillet, Les lois actuelles de la guerre Rousseau Paris 1901, second edition, p. 168 note 1.
2. Letter from Cardinal Antonelli to Mons. Boveri, 9 August 1864. Vatican Archives Segr. di Stato 1897, rub. 25A, fasc. 12.
3. Letter from Cardinal Antonelli to Mr Dubbs, President of the Swiss Confederation, 5 September 1868. Vatican Archives op. Cit., F. 69.
4. J. Joblin, Le Saint-Siege et la vie internationale contemporaine. La difficile ratification de la convention de 1864 in Archivum. Historiae Pontificiae 1993/31 pp. 243-250.
5. Letter from the Federal Government to Mons. Bianchi, new . charge d'affaires, ad interim, 27 April 1868 in Arch. Vat.
op. cit. F. 49.
6. D. Alvarez, The Holy See and the First Hague Conference in Archivum Historiae Pontificiae ..1988 126 pp. 431438; J. L Joblin, L’Eglise et la guerre DDB Paris 1988 pp. 224-226.
7. The text of the exchange. of letters can be found in Civilta Cattolica 1899 XVII VII p. 486 and Civilta Cattolica 1900 XVII XII pp. 283-284.
8. The Protection of Civilians and Prisoners of War during the First World War in "17eme congres international des sciences historiques", Madrid 1992, vol. II pp. 1004-1051.
9. "Expert in humanity", in the words of Paul VI during his visit to the United. Nations (Geneva, 1965).
Taken from:
L'Osservatore Romano
Weekly Edition in English
11/18 August 1999, page 3
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