Undermining Just War

Pope Francis has denounced capital punishment in recent years, and responses from concerned Catholics have focused largely on whether the Holy Father’s words represent a faithful account of the Church’s fundamental teaching. Amid this debate, most have overlooked the fact that Francis’s approach undermines one of the Church’s most important contributions to public life: just war doctrine.

Francis has pondered whether any war or execution can ever be just. In Fratelli Tutti, he writes: “There are two extreme situations that may come to be seen as solutions in especially dramatic circumstances, without [our] realizing that they are false answers.” These supposed solutions, he continues, “ultimately do no more than introduce new elements of destruction in the fabric of national and global society. These are war and the death penalty.”

Despite Francis’s characterization of both war and the death penalty as “false answers,” the Vatican has recently—if grudgingly—admitted that countries such as Israel and Ukraine have a “right to self-defense.” Thus, the Vatican permits defensive war (in line with international law) while prohibiting capital punishment.

Can these two positions be maintained together? Ultimately, I believe they cannot. The authority for prosecuting a just war and the authority for administering capital punishment have the same grounds. To undermine the one is necessarily to undermine the other. The Church may be correct to constrain capital punishment, but it cannot prohibit it without jettisoning the just war tradition.

In Romans 13:4, St. Paul authorizes the political sovereign to use the power of the sword to avenge wrongdoing. Pontiffs, doctors of the Church, and other important figures have interpreted this ascription of legitimate authority as applying to the political sovereign both internally and externally. The state may punish both domestic and foreign offenders when the sovereign judges it necessary for the common good. Aquinas quotes Augustine on this point: “A just war is wont to be described as one that avenges wrongs, when a nation or state has to be punished.”

Only legitimate political authority—the highest authority tasked with care for the common good of a political community—is authorized to use lethal force to punish. In the Christian tradition, as a rule, all private killing must be unintentional, justified under the principle of double effect. The paradigmatic case is self-defense, which Aquinas discusses in Summa II-II 40 and 64. In self-defense, one does not desire the death of the attacker. One wishes simply to end the assault and would be satisfied if the assailant desisted or fled. Because it is unintentional, killing in self-defense requires no higher authority. Francisco de Vitoria does not even offer justification for self-defense, arguing that it is permitted by the natural law. Private individuals or groups may intend to save themselves, foreseeing but not intending to kill the attacker; they do not have the authority to kill intentionally. The authority to inflict death as punishment is reserved to God, because he is the exclusive arbiter of life and death.

In capital punishment and just war, recourse to the sword involves non-defensive killing—“offensive” (even “aggressive”) action, in the sense of taking initiative. The criminal is taken from prison and executed; war is declared. In the classical natural law tradition, offensive killing is permissible only when it is authorized by a legitimate political authority deriving its power from God (Romans 13:4). And such an authority may kill only under very strict conditions. In the context of international relations, the elaboration of these restrictions produced what we call the tradition of just war.

Current understandings of the concept of “defense” have caused a great deal of confusion about just war. Contemporary international law, which the Vatican endorses, permits wars of self-defense and condemns wars of aggression. But what counts as “defense”? Classical authors strove for clarity. In their account, if an attack is ongoing, then a response in kind is considered defensive. If the attack has ended or been suspended, a response in kind is considered offensive. Unfortunately, international law today largely eliminates distinctions between completed (enemy soldiers attack, then retreat) and ongoing (enemy soldiers are in a live engagement) causes of war. Most wars that are called “defensive” by international law would be “offensive” in the view of classical just war.

An easy example illustrates the problem. Imagine you and your family are attacked in your home. You are permitted to defend yourselves in this instance, even to the point of killing the intruder. Such killing would be strictly defensive; the attacker’s knife is at your throat, either literally or as a realistic prospect. As long as the assault is ongoing, you can intentionally save your own life by killing your attacker. From a classical perspective, this private action is akin to defensive war: A foreign army storms across the border, and defending forces swing into action. Both the individual and the communal examples are permitted directly by the natural law. One need not consult jus ad bellum guidelines.

However, notwithstanding this natural right to self-defense, we are not permitted to repel an attacker and then pursue him into his house to kill him as punishment for violating our domestic tranquility, or in order to prevent him from doing it again. We are especially not permitted to gather up our neighbors, find the attacker’s home, and ambush him, killing him and his friends. Thomas calls this kind of killing rixa (strife) as opposed to bellum proper. Even if the offending neighbor and his friends put up a fight, vigilante justice would be considered murder under most accounts of criminal law. We have a right to defense, not offense. We must let the police and the courts (representatives of the legitimate authority) undertake the offensive task of meting out justice.

This offensive activity is exactly what occurs during war. One political community commits a grave wrong against another (a precondition for prosecuting a just war), often involving the death of innocents and the destruction of property. The offended community probably responds by declaring war on the attacking community. According to just war principles, this declaration allows the wronged nation to engage in offensive war at any time against enemy forces, even in enemy territory (precisely the pursuit that is not permitted in cases of private self-defense). In other words, just war involves offensive killing, action initiated to protect territorial integrity and exact retribution for an unjust attack. In this respect, speaking of just war as undertaken only in self-defense is mistaken, or at least misleading. Modern “defensive” wars are not actually akin to individual self-defense. We are never permitted to intend to kill in self-defense. Yet intentional killing of combatants (offensive killing) is the very object of most military actions, even when it is undertaken in a just cause.

Why do we permit intentional killing in just war but condemn it in instances of private killing (rixa)? After all, both cases can involve responses to grave violations of justice. The crucial distinction is this: Killing in war is under the command of a legitimate authority, whereas vigilante killing is not. This brings us to the crux of the problem with contemporary Catholic teaching on the death penalty. Just war requires the same legitimate authority as is needed for capital punishment. Undermining the authority needed for capital punishment undermines the authority needed for just war.

The logic of the matter is difficult to escape. To engage in offensive war, we must rely on the exclusive authority of the political community (delegated by God) to kill offensively. Only legitimate authority can command a counterattack. Yet by rejecting the moral legitimacy of capital punishment, we deny the authority of the political community to kill offensively, thereby rendering war-making nearly impossible, no matter how just the cause.

If the only licit kind of killing is self-defense, as is the case for individuals, then Hamas or some other force could make deadly incursions into Israel on a regular basis. They could retreat immediately to their enclaves, and the state of Israel would be morally forbidden to take offensive action by entering the enclaves to engage the hostile forces. Or Vladimir Putin could declare a unilateral ceasefire and the Ukrainian forces would have to stand down, just as a man defending his home must refrain from killing if the intruder puts down his weapon.

In short, either the state retains the right to punish wrongdoers in both the domestic and the international contexts, or it retains the right in neither. In fact, if one were to choose, it would seem that the state’s clearer claim is to the domestic use of the sword, since it has natural jurisdiction over its own citizens, whereas greater ambiguity surrounds the question of external jurisdiction among countries.

Unfortunately, the Vatican has diminished the Church’s just war tradition, limiting it in both theory and practice at a time when it is desperately needed. The conflicts in Ukraine and Gaza should remind us of the importance of just war principles. In their absence, public discourse easily falls into the extremes of utopian ideals on the one hand and a harsh realpolitik on the other. Neither extreme does a good job of limiting violence and protecting innocent lives.

The Church must remain a strong proponent of the just war tradition. Doing so requires acknowledging the possibility of legitimate recourse to capital punishment. This does not mean that Catholics must become enthusiastic champions of the death penalty, any more than that they ought to cheer at the prospect of war, but merely that we cannot abandon the death penalty in principle. In order to sustain the just war tradition, we must maintain clarity about the legitimate authority’s proper recourse to the sword.

Richard Cassleman is an active duty Air Force officer. The views expressed here are his own. 

Image by British Library on Picryl licensed via Creative Commons. Image cropped.