The idea of just war, which even denied the admissibility of a military attack as a way to resolve disputes at all, derives from the earliest times of humanity and both are nearly as old as the war itself. Not to mention the famous words from ‘The Book of Isaiah’ about beating the swords into ploughshares, a great deal of doctrines, most of them similar, appeared throughout the ages. One of them was the one introduced by a fifteenth century Polish scholar, Stanislas of Scarbimiria, in his ‘Sermon on just wars’. This first codification of a body of public international law based on a professional scientific research, objectively deals with a great deal of problems regarding the justified declaring war and of wartime conduct. Both in his way of writing and his approach to examined matters, Stanislas seemed to be much closer to the modern points of view on the law of war, unlike his contemporaries.
1. The doctrine of Stanislas of Scarbimiria in the context of Polish politics
Stanislas was born in 1365 in the city of Scarbimiria, Lesser Poland. He was a priest in a diocese of Kraków, educated in liberal arts and canon law. In his career he, however, mostly focused on academic and diplomatic challenges and served the country within both these (Tronina, 2011, p. 77). Having finished his studies, he started cooperating with the office of King Jagiello and his wife Jadwiga. When Jadwiga died in 1399, she left as heritage in her will a considerable amount of jewellery, to serve for the restoration of the University of Krakow (later Jagiellonian University in Kraków). Stanislas was one of the main supporters of the process (which finally led to the reopening of the University in 1400) and became its first rector. Afterwards, he served at the royal court and produced significant works on international public law and philosophy. He died in 1431. (Ożóg, 2007)
At the beginning of the 15th century, Polish politics was mostly focused on the problem that was the Teutonic Order, a substantial power, neighbour to Poland, aiming to increase its influence and reign – especially on the territories of Lithuania (the last pagan country in Europe, to the Christianisation of which the Order was settled on the Polish-Lithuanian border). However, Lithuania allied to Poland and was Christianised by it. Then the Order lost its chance to control Lithuanian territory itself and, in fact, became useless on those terrains.
Therefore, the conflict between the Order and Poland emerged both on military and judicial fields. The dispute was debated at the Council of Constance as well (at the time the biggest summit meeting of the world, focused mainly on reforming the Church). Even though the greatest authorities, the Pope and the Emperor were initially supporting the Teutonic Order’s point of view (especially on the admissibility to forcefully convert ), eventually inclined to the argumentation on religious tolerance, self-determination of people, peaceful coexistence of nations and equal rights to all humans. This was mainly presented by Paulus Vladimiri, a Polish representative during the Council and a Cracovian University scholar (a little younger than Stanislas, strongly influenced by him).
2. The main characteristics of the sermon “De bellis iustis” (About the just wars)
Although the form and the contents of Stanislas’s writings were objective and focused on an academic, systematic study, they were deeply concerned with the geo-political positioning of Poland in his times. Unlike Vladimiri, he did not concentrate on persuasive issues. In an educational method, he made a perfect display of previous academic works in order to support his own ideas (Stanislas forms a comparative framework from the Bible through Cicero, St. Augustine, St. Thomas Aquinas, Pope Innocent IV to other great canonists). Having some of the most enlightened predecessors in his area of research, Stanislas produced a consistent piece of work in the specific manner of his times, which can play an important role even nowadays.
The sermon “De bellis iustis” has a specific way of argumentation inclined on clearly depicting what an individual may and what he may not do. This aspect is also visible in the part where Stanislas emphasises the role of human conscience and underlines the people’s will to every undertaken action. This issue is later analysed in a context of responsibility for activities. (Ehrlich, 1955, p. 43) Being, however, designated to a well-read audience the sermon might have successfully acted like a scientific treatise or an academic lecture.
3. The right to declare war (ius ad bellum)
Taking into consideration the overall characteristics of Stanislas’ doctrine, it is important to begin the analysis of the law of war from the role and importance of peace. Though in the 15th century such inversion in the description of international public law using its two vital elements would have been regarded as ridiculous, it seems to be pretty obvious now. It was also exceptional to begin the sermon with military law, from the description of the cruelties of war (Scarbimiria, 1955, p. 93) and to finish it with a prayer for the common peace (Scarbimiria, 1955, p. 145). Stanislas strongly indicates that peace is the natural state of the world, to which it should aim (Scarbimiria, 1955, p. 129). His view seems quite close to the current state of the public international law doctrine, which had been established in the following five centuries of many bloody wars.
The war is therefore described as one of the ways to achieve peace, renounce law and order and restore the affairs to the position before the war. Even though it is regarded as a threat to global stability, it is accepted as a way to resolve international disputes, when they cannot be solved in any other way (Scarbimiria, 1955, p. 101). Vladimiri conditions the admissibility of war, even in self-defence, on an additional factor – an obligatory judgement of an international tribunal (Ehrlich, 1968, p. LVIII). In contrast, Scarbimiria regards unjust war as a symbol of evil, stating that it must be eradicated.
Stanislas repeats Raymond of Penyafort’s idea and develops his five conditions a war must fulfil in order to be regarded as just, which is the only admissible form of war. It must be conducted by an approved subject (persona) who is not clerical (these are not allowed to be active during warfare). It must have an object (res), aiming at either regaining the state of possession from times before the war or at protecting the fatherland. At the same time, Stanislas regards all aggressive wars (leading to retribution higher than actual losses or punishment) as unacceptable (unlike, for instance, Francisco de Vittoria’s opinion on this matter). The war must have the just reason (causa) of necessity to regain or reach the violated peace. It must be followed by a proper, fair will (animus) of heirs to fight, but only for justice and within the law and love of God and the people, neither based on revenge, greed nor hatred. Finally, it must be authorised (auctoritas) by law, a sovereign or the Church (Ehrlich, 1955, p. 57; Scarbimiria, 1955, 95-101).
The special regulation is given for the war in self-defence as a qualified example of a just war. This was based on a Roman and canonistic maxim meaning that force can be answered with a use of force (vim vi repellere licet) and a natural characteristic of every creature’s right to protect its own living and confront with violence undertaking inevitable measures (Scarbimiria, 1955, p. 115). An attacked country can immediately use force to cease the danger, even without authorisation, but cannot simultaneously make use of such situation in the form of an aggression to ensure profits (Scarbimiria, 1955, p. 105). The right to use military force in self-defence is admissible even now, based on Article 29 of the United Nations Charter, as an exception to the prohibition of the usage of force in international affairs. This right is also limited in time and concerning its subjects.
4. Right to a specific wartime conduct (ius in bello)
Conditionally accepting the existence of war in the global politics, Stanislas draws rules for a war to be just, not only in the moment of declaring it, but also during its course of action. Starting his consideration on possible measures to be undertaken during the course of a war, he again stressed the role of peace and accepted acts of undeniable wartime violence when they were necessary and could help reaching the state of peace. These, however, are certainly admissible in a just war only, since unjust war is inadmissible at all.
It is acceptable to kill people during wartime, but only if it is inevitable in a just war (bellum iustum). Stanislas believed that not only was such action free of consequences, but could also be a source of blessings as gratitude for the bravery presented in love of God and the country (Scarbimiria, 1955, p. 109). Warriors could make use of traps, ambushes, war machines like crossbows as well as the help from pagans (just like any military equipment can be used, under the condition of necessity, unlike the opinion of Alberico Gentili – Ehrlich, 1955, p. 47, Scarbimiria, 1955, pp. 129-131).
The circumstances are reversed in an unjust war, in which both monarchs and soldiers were not even allowed to use force. Although it was compulsory to carry out orders, only those justified constituted a proper obligation (Scarbimiria, 1955, p. 143). This idea is extended by Vladimiri, who admitted the right to reject the subordination to the monarch, whose decisions were legally or morally improper (Vladimiri, 1968, p. 72).
Regardless of the motives of any war, it is very likely to cause destruction. If damage is caused during a just war and within the necessary good faith of the fighting men (their harmful behaviour was not affected by malice), it does not have to be redressed. The existence of such devastation was accepted both on the terrains of an attacked country and on the land of their people as well – as a material contribution to the fight of the other people for one’s own country (Scarbimiria, 1955, p. 111). The participants were also allowed to keep their warfare prizes as their personal property (Scarbimiria, 1955, p. 107). Nevertheless, the situation is to change significantly, as the conduct of the unjust war (iniustum bellum) implies, indeed, extended responsibility of the aggressor. Based on legal, moral and religious sanctions, the monarch was obliged to redress the damage caused to the other side, either by himself or his soldiers. Moreover, he was also responsible in the eyes of his own people for the destruction done by the other side.
Evaluating the damage shall be done by permanently relating to the role of the remedy. It aims at restoring the pre-war state and is supposed to restore the social, political and economical balance, which were violated by the military attack. These measures seem to derive from the provision of international law and even the general principle of law which states that the violation of obligation (to maintain peace, for example) leads to the necessity of redressing its consequences.
5. The inadmissibility of a religious war
Although during the 15th century Europe was deeply religiously discriminative, some doctrines, even within Canon law, stated that the rights of pagans were equal to the rights of Christians. Stanislas underlines the importance of human dignity, which establishes equality between people and distinguishes them from all other creatures (Scarbimiria, 1955, p. 131) and derives from it further rights (Bańczyk, 2015, p. 82). Both pagans and Catholics are subject to identical provisions of natural law (for example, they are in equal possibility to make a use of the right to self-defence – Scarbimiria, 1955, p. 131). Pagans were, after Pope Innocent IV, given the right to reign countries and possess goods which were created by God for all humans and even the Pope could not take their possessions away (Scarbimiria, 1955, p. 137). The territories, however, were at first owned by the human community as a whole, but this led to disagreements so the lands became considered as being primarily occupied by some people (regarded as groups or individuals). This granted them the right to property, inviolable by anyone else. They could have used force to protect their terrains from enemies, which included an opposition against conversion with a use of force (Scarbimiria, 1955, p. 137). However they were not allowed to oppose peaceful conversion, which was supposed to be acceptable and even desirable (Scarbimiria, 1955, p. 133).
We can admit that the work of the Polish scholar could have played a vital role in the history of the world, having been able to prevent some of its cruel happenings. Proposed in the early 15th century, it gained some form of recognition in the international law and politics of those times and among a great deal of scholars throughout ages. However, the actual recognition of the doctrine, with the concepts of human rights and limited admissibility of war, came half a millennium later. That is the reason why we can prove that Stanislas’s works are not only useful, but also somehow inevitable on a long way to the global understanding of peaceful coexistence of nations, equality of people, and codification of international public law. They seem to be quite obvious now, but according to Stanislas they were equally obvious back in the 15th century.
By Wojciech Bańczyk
This article was originally published in the tenth issue of the magazine, which can be accessed here.