The return of 1979
In one of my very first posts I wrote was about the concept of Jus ad Bellum or 'Just War', which are the instances laid out in Law of Nations by de Vattel (1758) of when a Nation State may go to war. This I expanded upon in Where Angels fear to tread, because in our modern age we have glossed over and completely excised the differences between Public and Private war and what responses are appropriate to each. Law of Nations is descriptive law that attempts to encapsulate unwritten law which was differentiate by Bracton on the Laws and Customs of England (circa 1250) as the law leges, as opposed to the jus scriptum or written law. In fact Bracton describes Law of Nations as jus gentium:
What the jus gentium is.
[017] 33The jus gentium is the law which men of all nations use, which falls short of
[018] natural law since that is common to all animate things born on the earth in the
[019] sea or in the air. From it comes the union of man and woman, entered into by the
[020] mutual consent of both, which is called marriage. Mere physical union is [in the
[021] realm] of fact and cannot properly be called jus since it is corporeal and may be
[022] seen;34 all jura are incorporeal and cannot be seen. From that same law there
[023] also35 comes the procreation and rearing of children. The jus gentium is common
[024] to men alone, as religion observed toward God, the duty of submission to parents
[025] and country, or the right to repel violence and injuria. For it is by virtue of this
[026] law that whatever a man does in defence of his own person he is held to do lawfully;
[027] since nature makes us all in a sense akin to one another it follows that for one to
[028] attack another is forbidden.36
The Law of Nations, then, is universal to thinking beings capable of having families and of defense of self and Nation, as Nation arrives from the union of thinking man and woman in families. As the presence of families seeking to protect themselves and working with other families is universal in mankind, so are Nations, and yet the jus gentium does not come from Natural Law but from the application of reason and self-governance to our natural liberties and rights. Thus law of nations is usually spoken of in the lower case, encompassing the entire unwritten part of mankind's activities that fall into it, and in the larger case when citing an individual work within it. As de Vattel had worked with Blackstone prior to the colonies separating from the Great Britain, that work is predominant and guiding not just in the thought of those Founding the Nation and Framing the Constitution, but actually has direct, upper case citation in the latter.
What Law of Nations describes is the outcome of what many civilizations have formed in the way of rules between Nations and while it concentrates on mostly European Nations, the form of interaction described is one that can be seen globally between all Nations and the States running them. It doesn't matter what period of history you search (ancient to modern) or where you look geographically (from Southern Africa to Northern Siberia to the Great Plains to the high coastal regions of South America, all of mankind works under law of nations. de Vattel devotes an entire book (Book III) to warfare, which shows itself as a major part of the activities of mankind, but for the actions seen in Tehran in 1979 and today in Cairo and Benghazi, one must look to the norms and standards of diplomacy between Nations which comes in another book (Book IV). Ideas presented in both books receive references earlier in the work, but their full fleshing out happens in them as these are major components of Nations. To get an idea of how this works, here is paragraph 1 from Book IV:
§ l. What peace is.
PEACE is the reverse of war: it is that desirable state in which every one quietly enjoys his rights, or, if controverted, amicably discusses them by force of argument. Hobbes has had the boldness to assert, that war is the natural state of man. But if, by "the natural state of man," we understand (as reason requires that we should) that state to which he is destined and called by his nature, peace should rather be termed his natural state. For, it is the part of a rational being to terminate his differences by rational methods; whereas, it is the characteristic of the brute creation to decide theirs by force.1 Man, as we have already observed (Prelim. § 10), alone and destitute of succours, would necessarily be a very wretched creature. He stands in need of the intercourse and assistance of his species, in order to enjoy the sweets of life, to develop his faculties, and live in a manner suitable to his nature. Now, it is in peace alone that all these advantages are to be found: it is in peace that men respect, assist, and love each other: nor would they ever depart from that happy state, if they were not hurried on by the impetuosity of their passions, and blinded by the gross deceptions of self-love. What little we have said of the effects will be sufficient to give some idea of its various calamities; and it is an unfortunate circumstance for the human race, that the injustice of unprincipled men should so often render it inevitable.
Peace, then, is amongst the civilized of the Earth and those Nations that wish to practice peace should have intercourse and discourse between them so as to iron out differences. The brute man, the savage man, wishes no discourse and only force to be the way to settle things, to impose his will upon others without their consent.
You are, perhaps, seeing where this is going, no? How discussions really weren't present in1979 or today? Is what we are seeing and did see the actions of peaceful, rational man in his Nations, or irrational, brutish man that is uncivilized? If one cannot distinguish between these things, then one cannot properly distinguish between war and peace as peace is not just the absence of war. It is not with emotional fervor that I call these actions barbarous, brutish, savage and wholly contrary to civilized intercourse amongst Nations for that is exactly what these actions are stripped of all emotional content but with the ability to judge what is civil discourse and what is attack to get one's way and enforce one's will.
Now what is the source of these actions? Not the immediate 'this anti-Islamic film inflamed individuals' for it is possible to have heated passion without running riot, without damaging property of another Nation and without inflicting physical and lethal harm to others. Thus comes the second paragraph of Book IV and the object is still Peace:
§ 2. Obligation of cultivating it.
Nations who are really impressed with sentiments of humanity, — who seriously attend to their duty, and are acquainted with their true and substantial interests, — will never seek to promote their own advantage at the expense and detriment of other nations: however intent they may be on their own happiness, they will ever be careful to combine it with that of others, and with justice and equity. Thus disposed, they will necessarily cultivate peace. If they do not live together in peace, how can they perform those mutual and sacred duties which nature enjoins them? And this state is found to be no less necessary to their happiness than to the discharge of their duties. Thus, the law of nature every way obliges them to seek and cultivate peace. That divine law has no other end in view than the welfare of mankind: to that object all its rules and all its precepts lend: they are alt deducible from this principle, that men should seek their own felicity; and morality is no more than the art of acquiring happiness. As this is true of individuals, it is equally so of nations, as must appear evident to any one who will but take the trouble of reflecting on what we have said of their common and reciprocal duties, in the first chapter of the second book.
Note the last part I put in boldface, and that the individual and nation are part of a scale-free phenomena called 'peace'. A moral people, seeking happiness, would criticize those who detract from their religion, perhaps seek to have some understanding of how such a thing could come to be made with it being so hurtful to them. That is the realm of discourse, where passion can and must still play a part, but it also recognizes the rights of others to have their say and put such matters publicly for the benefit of all to hear and understand. For such morality to be present it must, actually, manifest in peaceful activities that respect other individuals and nations. Thus it can be said the activities taken in Tehran in 1979, Cairo and Benghazi in the last two days were not ones that were moral nor ones that respected the rights of other individuals or nations.
Of course as Nations have States to support them, those States fall under the sovereign power of the Nation. There are responsibilities for those who are vested with such sovereign power and their activities are the ones in which nations interact with each other. Responsibilities beget obligations and the sovereign has obligations as a manifestation of the power of the nation:
§ 3. The sovereign's obligation to it.
This obligation of cultivating peace binds the sovereign by a double tie. He owes this attention to his people, on whom war would pour a torrent of evils; and he owes it in the most strict and indispensable manner, since it is solely for the advantage and welfare of the nation that he is intrusted with the government. (Book I. § 39.) He owes the same attention to foreign nations, whose happiness likewise is disturbed by war. The nation's duty in this respect has been shown in the preceding chapter; and the sovereign, being invested with the public authority, is at the same time charged with all the duties of the society, or body of the nation. (Book I. § 41.)
If government is to have peace it must seek it not just for its people but for those nations it interacts with. The obligation to peace is put in trust to a Nation's government, and it is a grant of responsibility, obligation and power (although that will vary from Nation to Nation, the Nation as a sovereign power is said to have the whole power) by those in the Nation to that government. It may not be a grant by consent, and thusly any government that takes up the sovereign power without consent is doubly responsible for its activities.
In the case of 1979 that was (and remains) the government of Iran, in Cairo it is the government of Egypt, and for Benghazi it is the government of Libya. The outcomes of such activities are the responsibilities of the governments of each nation and what happens determines the course of that nation: are they to put forward the rule of law and diplomatic discourse or are they to endorse such activities? And what are the outcomes of these courses of action? Depending on which course is taken, the destination is set, and that is not by emotions but by the actions of the sovereigns involved. In Iran and Egypt the governments did not decry such activities, nor did they offer up to have a rule of law applied to the individuals doing such actions. In Libya, as far as can be discerned, there is a willingness to seek out the miscreants involved in murder of the US Ambassador and bring the proper laws involved into play (whatever they are).
Taking the last case first, as it is the closest we have come to expect from responsible actors as nations, even though the activities are horrific. Much later, starting in paragraph 80, are how Ambassadors are to be treated, and this is important in the Libyan case:
§ 82. Particular protection due to them.(197)
This safety is particularly due to the minister, from the sovereign to whom he is sent. To admit a minister, to acknowledge him in such character, is engaging to grant him the most particular protection, and that he shall enjoy all possible safety. It is true, indeed, that the sovereign is bound to protect every person within his dominions, whether native or foreigner, and to shelter him from violence: but this attention is in a higher degree due to a foreign minister. An act of violence done to a private person is an ordinary transgression, which, according to circumstances, the prince may pardon: but if done to a public minister, it is a crime of state, an offence against the law of nations; and the power of pardoning, in such case, does not rest with the prince in whose dominions the crime has been committed, but with him who has been offended in the person of his representative. However, if the minister has been insulted by persons who were ignorant of his character, the offence is wholly unconnected with the law of nations, and falls within the class of ordinary transgressions. A company of young rakes, in a town of Switzerland, having, in the night-time, insulted the British minister's house, without knowing who lived in it, the magistracy sent a message to the minister to know what satisfaction he required. He prudently answered, that it was the magistrates' concern to provide for the public safety by such means as they thought best; but that, as to his own part, he required nothing, not thinking himself affronted by persons who could have had no design against him, as not knowing his house. Another particular circumstance, in the protection due to foreign ministers, is this: — according to the destructive maxims introduced by a false point of honour, a sovereign is under a necessity of showing indulgence to a person wearing a sword, who instantly revenges an affront done to him by a private individual: but violent proceedings against a public minister can never be allowed or excused, unless where the latter has himself been the aggressor, and, by using violence in the first instance, has reduced his opponent to the necessity of self-defence.
Libya can try such people, but the place they can, nay must, reach trial is in the domain of the sovereign offended. If you kill the US Ambassador clemency, guilt or innocence cannot be determined in Libya but only by the US. That is the normal, ordinary course of affairs between nations that have regularized diplomatic intercourse via the exchange of diplomats. If the US recognizes such a government then that government has the obligation to seek out those who do such crimes and hand them over. There can be initial trial in Libya, yes, but any sentence is held in abeyance until they can be tried in the US.
No matter how piss-poor the current Libyan government is, they at least are acting by civilized norms and must be worked with and supported in their actions to bring those individuals in for trial. If they act in bad faith, seek to shield such miscreants or otherwise dissemble their intentions by their activities, then there are other means to go through to ensure compliance with the responsibilities and obligations of the sovereign power in Libya.
That now leaves the similar cases of Tehran 1979 and Cairo, in which the US Embassy grounds were invaded (twice in Tehran, once in Cairo to-date). This requires a look at the Embassy, which are part of where the Ambassador does his work:
§ 110. The ambassador is exempt from the civil jurisdiction of the country where he resides.
SOME authors will have an ambassador to be subject, in civil cases, to the jurisdiction of the country where he resides. — at least in such cases as have arisen during the time of his embassy; and, in support of their opinion, they allege that this subjection is by no means derogatory to the ambassadorial character: "for," say they, "however sacred a person may be, his inviolability is not affected by suing him in a civil action." But it is not on account of the sacredness of their person that ambassadors cannot be sued: it is because they are independent of the jurisdiction of the country to which they are sent; and the substantial reasons on which that independency is grounded may be seen in a preceding part of this work (§ 92). Let us here add, that it is in every respect highly proper, and even necessary, that an ambassador should be exempt from judicial prosecution even in civil causes, in order that he may be free from molestation in the exercise of his functions. For a similar reason, it was not allowed, among the Romans, to summon a priest while he was employed in his sacred offices:1 but at other times he was open to the law. The reason which we have here alleged for the exemption is also assigned in the Roman law: "Ideo enim non datur actio (adversus legatum) ne ab officio suscepto legationis avocetur,2 ne impediatur legatio."3 But there was an exception as to those transactions which had taken place during the embassy. This was reasonable with regard to those legati, or ministers, of whom the Roman law here speaks, who, being sent only by nations subject to the empire, could not lay claim to the independency enjoyed by a foreign minister. As they were subjects of the state, the legislature was at liberty to establish whatever regulations it thought most proper respecting them: but a sovereign has not the like power of obliging the minister of another sovereign to submit to his jurisdiction: and even if such power was vested in him by convention, or otherwise, the exercise of it would be highly improper: because, under that pretext, the ambassador might be often molested in his ministry, and the state involved in very disagreeable quarrels, for the trifling concerns of some private individuals, who might and ought to have taken better precautions for their own security. It is therefore, only in conformity to the mutual duties which states owe to each other, and in accordance with the grand principles of the law of nations, that an ambassador or public minister is at present, by the universal custom and consent of nations, independent of all jurisdiction in the country where he resides, either in civil or criminal cases. I know there have occurred some instances to the contrary: but a few facts do not establish a custom: on the contrary, those to which I allude, only contribute, by the censure passed on them, to prove the custom such as I have asserted it to be. In the year 1668, the Portuguese resident at the Hague was, by an order of the court of justice, arrested and imprisoned for debt. But an illustrious member of the same court4 very justly thinks that the procedure was unjustifiable, and contrary to the law of nations. In the year 1657, a resident of the elector of Brandenburg was also arrested for debt in England. But he was set at liberty, as having been illegally arrested; and even the creditors and officers of justice who had offered him that insult were punished.5
This is later reinforced in paragraph 113 and elsewhere in Law of Nations. When the Embassy of another nation is broken into, that is not an act of civil invasions but one of law of nations contravention. When it is private individuals doing such invasion, it is not civil trespass but a violation of the treaties between the nations involved which gives rise to an escalated tensions between the nations involved. The government of those people doing the invasion is responsible for a response: is it the course of civil process by the course of law, or is it upholding the law breakers? When it is the latter case it is giving backing to the action that then moves it from the realm of civil dispute to one of dispute between nations. In other words it transforms from mere civil trespass, to be sorted out by diplomacy and civil proceedings, to one where an actual invasion is given backing which is a casus belli, a cause for war.
When the sacrosanct nature of agreements between Nations, in exchanging ambassadors or other public ministers in search of peace requires this as it is the civil, rational and natural movement of men to seek peace amongst themselves. When that is transgressed and backed by the sovereign power of a Nation, peace can no longer be said to be the object of its desire. There is always an opportunity for diplomacy, of course, but that must be taken by that nation backing the transgressors, not by those being invaded.
Those doing the invasion, not being in uniform, not adhering to the standards of law of nations or the rules of war, are now conducting a military operation outside of both. This moves us back to Book III, the one on warfare and who gets to make it:
§ 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.
That step of saying that the citizens have acted in accordance with the sovereign power is one that changes the activities of those citizens and gives them military legitimacy. They are not legitimate military actors, however, by any standard and any future actions by such non-military actors is one that comes under law of nations as well:
§ 34. Na-
Nations that are always ready to take up arms on any prospect of advantage, are lawless robbers: but those who seem to delight in the ravages of war, who spread it on all sides, without reasons or pretexts, and even without any other motive than their own ferocity, are monsters, unworthy the name of men. They should be considered as enemies to the human race, in the same manner as, in civil society, professed assassins and incendiaries are guilty, not only towards the particular victims of their nefarious deeds, but also towards the state, which therefore proclaims them public enemies. All nations have a right to join in a confederacy for the purpose of punishing and even exterminating those savage nations. Such were several German tribes mentioned by Tacitus — such those barbarians who destroyed the Roman empire: nor was it till long after their conversion to Christianity that this ferocity wore off. Such have been the Turks and other Tartars — Genghis Khan, Timur Bec or Tamerlane, who, like Attila, were scourges employed by the wrath of Heaven, and who made war only for the pleasure of making it. Such are, in polished ages and among the most civilized nations, those supposed heroes, whose supreme delight is a battle, and who make war from inclination purely, and not from love to their country.
That is what such nations are, are they not? The ones that incite their people to kill not to protect society, not to protect territory or property, not to any sane reason and without justification. These are so-called 'rogue nations', although getting modern man to understand that civilization is at threat from such nations has been difficult, if not impossible to do. When private individuals take to war with no sovereign grant or oversight, no sovereign accountability, that is unlawful war:
§ 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.
We call these modern day actors: terrorists. They are in the same class as pirates as the objective of war when done by private individuals without sovereign grant is not material: power, lust, greed, or just wanting to see the world burn are all one and the same in Private War which is illegitimate in all circumstances. A Nation condoning and sponsoring such is an enemy of all mankind.
Unfortunately the State of Iran and Egypt are now in that category and are abusing their sovereign power meant to protect their people and using that power to inspire the activity of war to no lawful effect and no good end for mankind.
I have no hatred for the people of Iran or Egypt.
Their governments are monsters as their actions now tell you that.
It is civilized to wish that the people of these Nations had governments worthy of them to seek peace for them amongst their fellow nations of the Earth. Such is not the case and the remedy has already been stated, if one can but read and reason.
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