The Law of War and Peace (1625)
by Hugo Grotius
On The Right of Killing Enemies in a Public War, And on Other Violence Against The Person
I. The effects of a public war are explained in general terms.
1. On the verse of Virgil,
- Then to strive in hatred, then to plunder,
Will become permissible,
Servius Honoratus, after tracing the fetial law from Ancus Martius, and more remotely from the Aequicoli, makes this comment:
If at any time it happened that either men or cattle had been carried off from the territory of the Roman people by any nation. the pater patratus, with the fetials, that is, the priests who preside over the conclusion of treaties, would set out, and standing before the frontier would state the cause of war in a loud voice; if they refused to restore ‘the things that had been carried off, or to surrender the wrongdoers, he would hurl a spear toward them. This constituted the beginning of hostilities, and then it was permissible to pillage in accordance with the usage of war.
Servius, moreover, had previously said: ‘The ancients were accustomed to use the words “to inflict injury (laedere res)” where we say “to pillage (rapere),” even if no crime of pillaging had been committed; in like manner they used to say “to make restitution (res reddere)” where we say “to give satisfaction (satisfacere)”.’
From these facts we learn that a war declared between two peoples, or the heads of two peoples, has certain particular effects’ which do not arise from the nature of war itself. This conclusion, again, agrees excellently with what we have just now cited from the Roman jurists.
II. A distinction is made between the word ‘permissible’ as referring to that which is done with impunity, although not without moral wrong, and to that which is free from moral wrong even if virtue would enjoin not to do it; with examples.
1. But let us see the import of the ‘will become permissible’ in Virgil’s line. For sometimes that is said to be permissible which is right from every point of view and is free from reproach, even if ‘there is something else which might more honorably be done, as indicated in that statement of Paul the Apostle: ‘All things (that is of the sort which he had touched upon and was going to discuss) are lawful for me, but not all things are expedient.’
Thus it is lawful to contract marriage, but for a holy purpose the chastity of celibacy is more worthy of praise,’ as Augustine, following the same apostle, wrote to Pollentius. Also to marry a second time is lawful, but it is more honorable to be content with one marriage; this is according to the correct elucidation of that question by Clement of Alexandria. A Christian husband may lawfully leave his pagan wife, as Augustine thinks s (this is not the place to discuss in what circumstances this is true), but he may also keep her, and so Augustine adds: ‘Either course is indeed equally permissible according to the justice which waits upon the Lord; and so the Lord forbids neither of them, but each one is not expedient.’ Ulpian says of the seller who is permitted to empty out wine after the appointed day: ‘Nevertheless it is more praiseworthy if he does not empty it, when he might do so.’
2. In another sense, however, something is said to be permissible, not because it can be done without violence to right conduct’ and rules of duty, but because among men it is not liable to punishment. In this sense fornication is permitted among many peoples; among the Lacedaemonians and Egyptians even thieving was permissible. In Quintilian we find: ‘There are certain things which are not praiseworthy according to nature, but which are legally permissible; thus according to the Twelve Tables it was permitted to divide the body of the debtor among his creditors.’
This, however,, is hardly a proper meaning of the word ‘permitted’ in the strict sense, as Cicero rightly observes in his Tusculan Disputations, Book V. Here, speaking of Cinna, he says: ‘To me, on the contrary, he seems wretched not only because he did this, but also because he so conducted himself that it would be permissible for him to do it. Although it is not permissible for any one to do wrong, still we are misled by an error of speech; for we say that that is permitted which each one is allowed to do.’ This is, nevertheless, an accepted meaning, as shown by Cicero’s address to the judges in his plea For Rabirius Postumus: ‘You should have regard to what becomes you, not merely what is permissible for you; for if you seek only what is permitted you may remove from the state whomsoever you wish.’
Similarly it is said that for kings all things are permitted because they are’ not liable to be held accountable,’ that is, they are beyond the reach of human punishments, as we have said elsewhere. But for the instruction of a king, or an emperor, Claudian rightly says:
- Consider not what you may do, but that of which the doing will honor bring.
Musonius rebukes those kings ‘who are in the habit of saying, ” This is permissible for me “, not ” This is right for me “.’
3. In this sense we often see what is permitted contrasted with what is right. Such a contrast is presented by Seneca the Father more than once in his Controversies. Ammianus Marcellinus says ‘There are some things which it is not right to do, even if it is permitted..’ With this accords what Pliny says in his Letters: ‘It is right to avoid what is dishonorable, not as being not permissible, but as being shameful.’
Cicero, again, in the speech For Balbus, has this: ‘For there is something which is not right, even if it is permitted.’ In the speech For Milo he refers the standard of right (fas esse) to nature, and the standard of what is permissible (licere) to the laws. In a declamation of Quintilian the Father there is a saying that it is one thing to have regard to rights, and another to have regard to justice.
III. The effects of a public war in general are concerned with permission that grants impunity.
With this restriction, therefore, it is permitted to harm an enemy, both in his person and in his property; that is, it is permissible not merely for him who wages war for a just cause, and who injures within that limit, a permission which we said at the beginning of this book was granted by the law of nature, but for either side indiscriminately.
As a consequence, he who happens to be caught in another’s territory cannot for that reason be punished as a murderer or a thief, and war cannot be waged upon him by another on the pretext of such an act. With this meaning we read in Sallust: ‘To whom in the hour of victory all things were permitted by the law of war.’
IV. Why such effects have been introduced.
The reason why such effects met with the approval of nations was this. To undertake to decide regarding the justice of a war between two peoples had been dangerous for other peoples, who, were on this account involved in a foreign war; just so the Massilians said, in relation to the struggle between Caesar and Pompey, that it was not within the province of their judgement or their power to determine which party had the juster cause. Furthermore, even, in a lawful war, from external indications it can hardly be adequately known what is the just limit of self-defense, of recovering what is one’s own, or of inflicting punishments; in consequence it has seemed altogether preferable to leave decisions in regard to such matters to the scruples of the belligerents rather than to have recourse to the judgements of others. The Achaeans in their speech to the Senate, as recorded by Livy, said: ‘In what way do those things which have been done in accordance with the law of war come under discussion? ‘
In addition to this effect of permissibility, that is of impunity, there is another, that of ownership, which we shall discuss later.
V. Testimony regarding these effects.
1. Moreover that licence to injure, which we have now begun to consider, extends in the first place to persons; in regard to it there are many evidences in writers of authority. There is a Greek proverb from a tragedy of Euripides:
- Pure are all they who shed the blood of foes.
According to an ancient custom of the Greeks it was not lawful to bathe, to eat or drink, and much less to perform sacred rites, in, company with those who had slain a man in time of peace; but to do so with those who had killed in war was right.
In general, killing is called a right of war. Says Marcellus in Livy: ‘Whatever I have done to the enemy is defended by the law of war.’ In the same writer Alco says to the men of Saguntum ‘But I think that you ought rather to endure these things than to suffer your bodies to be butchered, your wives and children to be seized and dragged off before your faces in accordance with the law of war.’ Again, in another passage, after telling of the slaughter of the Astapenses, Livy adds that this was accomplished in accordance with the law of war.
In his speech For Deiotarus, Cicero says: ‘Why should he be Four enemy, when he remembered that he and his son had been made kings by you, who would have been justified by the law of war in killing him?’ Also, in the speech For Marcus Marcellus ‘For although by the terms of victory itself you might lawfully have Main us all, we were preserved by the mercifulness of your judgement.’ Caesar informed the Aeduans ‘That those through his kindness had been preserved whom according to the law of war he could have put to death.’ Josephus says in his Jewish War: ‘It is a noble thing to die in war, but by the law of war, that is, at the hands of the victors.’ Papinius [Statius] has this:
- And we mourn not the fallen; such are the rights of war
And hazards of arms.
However, it is clear from other passages that when these writers say ‘by the law of war’ we must not understand such a law as would free what is done from all blame, but such immunity from punishment as I have mentioned. Tacitus says: ‘In peace we consider causes and deserts; when war breaks out, innocent and guilty fall together.’ The same author elsewhere has this: ‘Human justice would not permit them to approve such slaughter, nor the principles of warfare to avenge it.’
In no other sense should we understand the right of war which, according to Livy, the Achaeans refrained from availing themselves of against Aeneas and Antenor because these had always been advocates of peace. Seneca, in his tragedy the Trojan Women, says:
- Whate’er he will, ’tis permitted the victor to do.
In his Letters, also: ‘Deeds which they would atone for with their lives if committed in peace, we praise them for having done under arms.’
Cyprian declares: ‘Murder committed by individuals is a crime; when accomplished by public authority it is called a virtue. Wicked deeds acquire immunity not on the plea that they are void of. guilt but because their ruthlessness is on a grand scale.’ Later he adds ‘The laws have come to terms with crimes; whatever is public begins to be permissible.’ Similarly Lactantius says that the Romans in accordance with law inflicted injuries. And in the same sense Lucan speaks of ‘right given over to crime.’
VI. Out of this right arises the right to kill and injure all who are in the territory of the enemy.
Furthermore, this right of doing what is permissible has a wide application. In the first place it extends not only to those who actually bear arms, or are subjects of him that stirs up the war, but in addition to all persons who are in the enemy’s territory. This is made plain by that very formula in Livy: ‘Let him be accounted. an enemy, and those who are within his defenses.’ The reason is that injury may be feared from such persons also; and this is sufficient, in a prolonged and general war, to give rise to the right which we are discussing.
The situation is different from that which arises from the taking of guarantees, which, as we have said, originated in the manner of the impositions levied for the payment of the debts of a state. Therefore, as Baldus notes, it is no wonder that much more is permissible in war than in the exacting guarantees.
At any rate what I have said is beyond all dispute true of foreigners who enter hostile territory after a war has commenced and they are aware of it.
VII. What is the situation in case foreigners have entered a country before the outbreak of war?
But foreigners who have gone to a country in a period prior to the war, after the lapse of a moderate time,’ in which they could have departed, are apparently to be regarded as enemies according to the law of nations. Accordingly the Corcyreans, who were going to blockade Epidamnus, first gave to the foreigners an opportunity of leaving the city, telling them that if they should remain they would be regarded as enemies.
VIII. The right to inflict injury extends to subjects of enemies anywhere, unless the law of the foreign territory prevents it.
1. Now those who are truly subjects of the enemy, that is to say from a permanent cause, may in respect to their persons be lawfully injured in any place whatsoever, according to the law of nations. For when war is declared upon any one it is at the same time declared upon the men of his people, as we showed before in the formula of declaration; so also in the proposal for voting: ‘Did they wish, did they command, that war be declared upon King Philip and the Macedonians who were under his rule? ‘
Moreover, according to the law of nations, any one who is an enemy may be attacked anywhere. As Euripides says:
- The laws permit to harm a foe where’er he may be found.
Marcianus the jurist says: ‘It is permissible to slay deserters, just the same as enemies, wherever they may be found.’
2. Such persons therefore may be slain with impunity in their own land, in the land of an enemy, on land under the jurisdiction of no one, or on the sea. The fact that it is not permissible to slay or injure such persons in territory which is in a state of peace is based on a right derived not from their persons but from the right of him who exercises sovereignty there.’ For political societies were able to agree that no violent measures should be taken against persons who are in territory at peace except by recourse to legal proceedings; of such purport is the passage from Euripides which we have already quoted:
- If some charge against these guests you prove,
Justice you shall obtain; by violence
You shall not drag them hence.
Where tribunals exist regard is had to the deserts of individuals, and that promiscuous right of inflicting injury, which we say arises as between enemies, there ceases. Livy records that seven Carthaginian ships of war were in a harbor that fell under the authority of Syphax, who at that time was at peace with the Carthaginians and the Romans. Scipio came to the harbor with three ships of war, which might have been sunk by the Carthaginians before they entered the harbor; but a strong wind brought them into port before the Carthaginians weighed anchor. Then, in fact, the Carthaginians did not dare to make any attack in the port since it belonged to the king.
IX. The right to inflict injury extends even over infants and women.
1. But to return to the point under consideration: How far this right to inflict injury extends may be perceived from the fact that the slaughter even of infants and of women is made with impunity, and that this is included in the law of war.
I shall not urge, in support of this statement, that the Jews killed the women and children of the Hesbonites, and that they were commanded to execute a like vengeance upon the Canaanites and those who were allied with the Canaanites; for these are the works of God, whose right over men is greater than that of men over, brutes, as we have explained elsewhere. Of greater pertinence, as evidencing the common practice of nations, is the fact that in the Psalms it is said that he will be happy who dashes the infants of the Babylonians against a rock. This is paralleled by the saying of Homer:
- Bodies of infants dashed upon the ground,
While ruthless war all things affrights.
2. In ancient times, as Thucydides relates, upon capturing Mycalessus the Thracians slew both women and children. Arrian records the same of the Macedonians when they had taken Thebes. After Ilurgia, a city in Spain, had been captured,’ the Romans ‘slew alike both children and women,’ to use the words of Appian.
Tacitus records that Germanicus Caesar laid waste the villages of the Marsi, a people of Germany, with fire and sword, and adds ‘Neither sex nor age found mercy.’ Titus even exposed Jewish children and women to be slaughtered by wild beasts in a public spectacle. And yet these two men are believed to have been by no means cruel in disposition – to such an extent had cruelty of this sort become a custom. It is, then, less surprising if old men too are killed, as Priam by Pyrrhus.
X. The right to inflict injury extends even over captives, and without limitation of time.
1. Not even captives are exempt from this right to inflict injury.’ In Seneca Pyrrhus says, in accordance with the accepted custom of the time,
- No law the captive spares or punishment restrains.
In the Ciris, attributed to Virgil, such is said to be the law of war, even against captive women; Scylla there speaks thus:
- But by the law of war a captive you had slain.
Also in the passage cited from Seneca the killing of a woman, Polyxena in fact, was under discussion. This practice gave rise to that saying of Horace:
- When you can sell a prisoner, slay him not;
for the words imply the postulate that it is permissible to kill a captive.
Donatus says that those were called slaves (servi) who had been saved (servati), ‘when by the law of war they could have been killed.’ Thus the captives from Epidamnus were slain by the Corcyreans, as Thucydides relates. Thus five thousand prisoners were put to death ‘by Hannibal. In the African War of Hirtius a centurion of Caesar thus addresses Scipio: ‘I thank you for having promised life and safety to me, although a captive by the law of war.’
2. So far as the law of nations is concerned, the right of killing such slaves, that is, captives taken in war, is not precluded at any time, although it is restricted, now more, now less, by the laws of states.
XI. The right to inflict injury extends even over those who wish to surrender, but whose surrender is not accepted.
Furthermore we meet with frequent examples of the slaughter of suppliants, as by Achilles in Homer, and in Virgil the cases of Mago and Turnus. These instances of the killing of suppliants, we see, are related in such a way that they are defended by the law of war of which I have spoken. In fact, Augustine also, when praising the Goths, who had spared suppliants and those that had taken refuge in temples, says: ‘What would have been permissible by the law of war they judged was not permissible for them.’
Again, the surrender of those who give themselves up is not always accepted. Such was the case of the Greeks who fought in the service of the Persians at Granicus; in Tacitus is another instance, that of the Uspenses, who sought pardon for their freemen: ‘Their plea the victors rejected,’ he says,’ that they might rather perish by the law of war.’ Note here also the expression ‘the law of war.’
XII. The right to inflict injury extends even over those who have surrendered unconditionally.
But you may read also that captives, whose unconditional surrender was accepted, have been put to death,’ as the rulers of Pometia by the Romans; Samnites, by Sulla; Numidians, and Vercingetorix himself, by Caesar.
There was indeed almost a permanent custom among the Romans with respect to the commanders of the enemy, whether captured of received by surrender, that they should be put to death on the day of the Roman triumph So Cicero informs us in his fifth oration Against Verres, Livy both in Book XXVIII and elsewhere, Tacitus in his Annals, Book XII, and many other authors. As Tacitus also relates, Galba ordered the decimation of those whom he had received under his protection as suppliants; and Cecinna, after receiving the surrender of Aventicum, punished Julius Alpinus, one of the foremost men, as the instigator of the war, and left the rest to the mercy, or savagery, of Vitellius.
XIII. It is incorrect to refer this right to other causes, as retaliation, or obstinacy of defense.
1. Sometimes historians assign the reason for the slaughter of enemies, particularly of captives or suppliants, either to retaliation, or to obstinacy in resisting;’ but these causes, as we have indicated elsewhere, are plausible rather than justificatory. In fact, retaliation that is lawful, and properly so called, must be inflicted upon the very person who has done wrong, as may be seen from what has previously been said on the sharing of punishment.
In war, on the contrary, what is called retaliation very frequently brings harm to those who are in no way to blame for that on which the issue is joined. The point of view is thus set forth by Diodorus Siculus: ‘Having learned from actual experience, since the hazard of war is the same for all belligerents, they were not unaware that either side if defeated must expect to receive the treatment which it would have accorded to the vanquished.’ In the same author Philomelus, leader of the Phocians, ‘made the enemy cease from their insolent and cruel punishment by inflicting an equivalent penalty.’
2. In truth there is no one who holds that an obstinate devotion to one’s party is worthy of punishment; this is illustrated by the reply of the Neapolitans to Belisarius, in Procopius. The statement holds particularly true when the party to which allegiance is maintained has been assigned by nature, or chosen for an honorable reason.
In fact, so far from there being any crime involved in such allegiance, it is accounted a criminal act to desert one’s post. This was insisted on especially in the military law of ancient Rome, which in such cases hardly admitted any excuse of fear or danger. ‘Among the Romans to leave one’s post is a capital crime,’ says Livy. For his own advantage, therefore, each one resorts to so extreme severity in cases in which it seems expedient; moreover, such severity is defended among men by the law of nations, of which we are now treating.
XIV. The right to inflict injury extends over hostages also.
This right to inflict injury has also been exercised against hostages, not merely against those who had bound themselves, as by an agreement, but also against those who have been surrendered by others. In ancient times two hundred and fifty hostages were put to death by the Thessalians; and hostages of the Volsci Aurunci, to the number of three hundred, by the Romans.
Furthermore we must remember that even boys were commonly given as hostages; we read that this was done by the Parthians and by Simon, one of the Maccabees. Women also were given as hostages by the Romans in the time of Porsena, and by the Germans, according to Tacitus.
XV. By the law of nations it is forbidden to kill any one by means of poison.
1. However, just as the law of nations, through that form of permission which we have now explained, permits many things which are forbidden by the law of nature, so it forbids certain things which are permissible by the law of nature. If you take account only of, the law of nature, in case it is permissible to kill a person, it makes no difference whether you kill him by the sword or by poison. By the law of nature, I repeat, for it is indeed more noble to kill in such a way that he who is killed may have a chance to defend himself; but this is not an obligation due to one who has deserved to die.
Nevertheless from old times the law of nations – if not of all nations, certainly of those of the better sort – has been that it is not permissible to kill an enemy by poison.
Agreement upon this matter arose from a consideration of the common advantage, in order that the dangers of war, which had begun to be frequent, might not be too widely extended. And it is easy to believe that this agreement originated with kings, whose lives are better defended by arms than those of other men, but are less safe from poison, unless they are protected by some respect for law and by fear of disgrace.’
2. In speaking of Perseus Livy calls the poisoning of enemies secret crimes. Claudian, in discussing the plot against Pyrrhus which; was rejected by Fabricius, characterizes it as impious, and Cicero, touching on the same story, refers to it as an atrocity. From the point of view of an example for all, it is important that no such deed be done, say the Roman consuls in the letter to Pyrrhus: which Gellius quotes from Claudius Quadrigarius. In Valerius Maximus is the saying, ‘Wars ought to be waged with weapons, not with poisons.’
Tacitus records that, when the leader of the Chatti offered to bring about the death of Arminius by poison, Tiberius refused the offer, by this glorious act placing himself on a level with the generals; of olden days. Wherefore those who argue that it is permissible to kill an enemy by poison, as does Baldus, following Vegetius, have regard to the law of nature only; they quite overlook that which takes its rise in the will of the nations.
XVI. By the law of nations it is forbidden to poison weapons or waters.
1. Different in a degree from poisoning of this sort, and more closely allied with the use of force, is the poisoning of javelins. This is a doubling of the causes of death which Ovid relates of the Getae, Lucan of the Parthians, Silius of certain of the Africans, and Claudianus of the Ethiopians in particular. But this also is contrary to the law of nations,’ not indeed of all nations, but of European nations, and of such others as attain to the higher standard of Europe.
John of Salisbury has rightly stated the principle in these words:
‘I do not read that it is permissible under any law to use poison, although I see that poisoning is sometimes resorted to by unbelievers.’ Of like implication are the words of Silius, ‘To disgrace iron with poison.’
2. The poisoning of springs also, though the act either is not .secret or does not long remain so, is said by Florus to be not only contrary to ancestral custom but also contrary to the law of the gods; just as we have pointed out elsewhere, writers frequently ascribe the laws of nations to the gods. It should not indeed seem remarkable if there exist some such tacit agreements among belligerents to lessen the risks of war, when in olden times the Chalcidians and Eretrians, while at. war, covenanted ‘not to make use of missile weapons.’
XVII It is not forbidden by the law of nations to pollute waters in another way.
The rule just stated has not been established in regard to the pollution of waters without the use of poison, in such a way that one cannot drink from them. Such pollution, we read, Solon and the Amphictyons considered lawful against barbarians; and according to Oppian, in his On Fishing, Book IV, it was customary in his time. This is considered to be like the diverting of a river, or cutting off the veins of a spring, which is permissible by nature and by convention.
XVIII. Whether or not the use of assassins is contrary to the law of nations.
1. The question is frequently discussed whether, according to the law of nations, it is permissible to kill an enemy by sending an assassin against him.
In general a distinction must be made between assassins who violate an express or tacit obligation of good faith, as subjects resorting to violence against a king, vassals against a lord, soldiers against him whom they serve, those also who have been received as suppliants. or strangers or deserters, against those who have received them and such as are held by no bond of good faith. In the latter class is Pepin, the father of Charlemagne, who, accompanied by one attendant, is said to have crossed the Rhine and to have slain an enemy in his bedchamber; a similar deed was attempted upon Ptolemy of Egypt, and Polybius, attributing it to Theodotus the Aetolian, calls it ‘a manly deed of daring.’
Of such a character was also the attempt of Quintus [Gaius] Mucius Scaevola, celebrated by historians, which he himself defended thus: ‘As an enemy I wished to slay an enemy.’ Porsena himself saw nothing but bravery in this deed. Valerius Maximus calls it an attempt free from reproach and brave; and Cicero also praises it in his speech For Publius Sestius.
2. Not merely by the law of nature but also by the law of nations, as we have said above, it is in fact permissible to kill an enemy in any place whatsoever; and it does not matter how many there are who do the deed, or who suffer. Six hundred Spartans with Leonidas entered the hostile camp of the enemy and made straight for the tent of the king. The same venture would have been permissible for a smaller number. Those were few in number who from an ambuscade surrounded and slew the consul Marcellus; and few likewise were those who all but stabbed Petilius Cerialis in his bed. Ambrose praises Eleazer for attacking an elephant which towered above the rest, in the belief that the king was seated thereon.
According to the law of nations not only those who do such deeds, but also those who instigate others to do them, are to be considered free from blame. Scaevola was incited to his daring deed by those Roman senators of old, who were so scrupulous in warfare.
3. No one ought to be influenced by the fact that when persons who have made such attempts are caught they are usually subjected to refined tortures. This result does not follow because they have violated the law of nations, but because, by that same law of nations, anything is permissible as against an enemy. In such cases, however, each decides upon a more severe or more lenient punishment from the point of view of his personal advantage.
Under these conditions spies, whose sending is beyond doubt permitted by the law of nations – such as the spies whom Moses sent out, or Joshua himself if caught are usually treated most severely. ‘It is customary,’ says Appian,’ to kill spies.’ Sometimes they are treated with justice by those who clearly have a just care for carrying on war; by others, however, they are dealt with in accordance with that impunity which the law of war accords. If any are to be found who refuse to make use of the help of spies, when it is offered to them,’ their refusal must be attributed to their loftiness of mind and confidence in their power to act openly, not to their view of what is just or unjust.
4. But a different point of view must be adopted in regard to those assassins who act treacherously. Not only do they themselves act in a manner inconsistent with the law of nations, but this holds true also of those who employ their services. And yet, in other things those who avail themselves of the aid of bad men against an enemy are thought to sin before God, but not before men; that is, they are thought not to commit wrong against the law of nations, because in such cases
- Custom has brought law beneath its sway;
and ‘to deceive,’ as Pliny says, ‘in the light of the practices of the age, is prudence.’
Nevertheless the warrant of custom in such cases does not extend to the right of killing; for he who makes use of another’s treachery in causing death is believed to have violated both the law of nature and the law of nations. This is apparent from the words of Alexander to Darius: ‘You are waging an unrighteous war; and, although you have arms, you set a price on the heads of your enemies.’ Later he says: ‘You who have not even observed the laws of war towards me.’ In still another passage: ‘I must pursue him to the death, not as a just foe, but as an assassin and a poisoner.’
Of similar purport is the statement concerning Perseus: ‘He was not undertaking a just war with the spirit of a king, but was making his attacks by means of all the secret crimes of robbers and posiers.’ In treating these same deeds of Perseus, Marcius Philip’s said: ‘In the ruin of his fortunes he will perceive how hateful all his acts are to the gods also.’ Here, again, the statement of Valerius Maximus applies: ‘The slaying of Viriathus produced a twofold charge of treachery: against his friends, because he was killed by their hands; against Quintus Servilius Caepio, the consul, because he was the instigator of the crime by his promise of immunity, and did not earn his victory, but purchased it.’
5. The reason why in this matter men have reached a conclusion different from that adopted in other cases is the same that we advanced above with regard to the use of poison. It has in view the purpose to prevent the dangers to persons of particular eminence from becoming excessive. According to Justin, Eumenes declared that ‘he did not believe that any general wished to conquer by such means that he would set a very bad example against himself.’
In Justin, again, the murder of Darius by Bessus is said to be an example and a cause common to all kings; and, in Sophocles, Oedipus, when about to avenge the death of King Laius, says:
- Then in avenging him I serve myself.
Likewise in Seneca’s tragedy on the same theme:
- Kings, above all, king’s safety must protect.
The Roman consuls wrote in a letter to Pyrrhus: ‘It seemed an example of good faith for all that we should desire your safety.’
6. In a public war, therefore, or among those who have the right to declare a public war, the practice under consideration is not permissible; however, apart from a public war, by the same law of nations it is held to be permissible. Accordingly, Tacitus does not admit that a plot of this sort laid against the renegade Gannascus was degrading. Curtius says that the treachery of Spitamenes could seem less hateful, since no one thought anything wicked that was done against Bessus, who slew his king. So, too, treachery towards robbers and pirates is not indeed blameless, but goes unpunished among nations by reason of hatred of those against whom it is practiced.
XIX. Whether rape is contrary to the law of nations.
1. You may read in many places that the raping of women in time of war is permissible, and in many others that it is not permissible. Those who sanction rape have taken into account only the injury done to the person of another, and have judged that it is not. inconsistent with the law of war that everything which belongs to the enemy should be at the disposition of the victor. A better conclusion has been reached by others, who have taken into consideration not only the injury but the unrestrained lust of the act; also, the fact that such acts do not contribute to safety or to punishment, and should consequently not go unpunished in war any more than in peace.
The latter view is the law not of all nations, but of the better ones. Thus Marcellus, before capturing Syracuse, is said to have taken pains for the protection of chastity,’ even in the case of the enemy. In Livy, Scipio says that it is a matter of concern for himself and for the Roman people ‘that they should not violate what is anywhere held sacred.”Anywhere,’ that is to say, among the more advanced peoples. Diodorus Siculus says of the soldiers of Agathocles: ‘They did not abstain from insults and lawlessness towards women.’ Aelian, having related that the chastity of the women and girls of Pellene was violated by the victorious Sicyonians, exclaims: ‘These are most brutal acts, ye gods of Greece, and not held honorable even among barbarians, so far as my memory serves.’
2. Among Christians it is right that the view just presented shall be enforced, not only as a part of military discipline, but also as a part of the law of nations; that is, whoever forcibly violates chastity, even in war, should everywhere be subject to punishment. No one could have committed such an act with impunity under the Hebraic law, as may be perceived from that part which deals with the taking of a woman captive and not subsequently selling her. On this passage the Jewish rabbi Bacchai comments: ‘God wished that the camp of the Israelites should be holy, not abandoned to fornication and other abominations like the camps of the Gentiles.’
Arrian, after relating that Alexander, captivated by the love for Roxane, ‘did not desire to misuse her as a captive, but thought it proper to marry her,’ adds his approval of the act. Of the same act Plutarch says: ‘He did not misuse her, but took her to wife, as was becoming for a philosopher.’ Plutarch relates also that a certain Torquatus was banished to Corsica s by a decree of the Romans, because he had violated a maiden of the enemy.