Terrorism and International Law: A Catholic Perspective
A Prospective on a Post-Sept. 11 Question
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ROME, MAY 15, 2004 (Zenit.org).- What are the demands and limitations of international law in a world grappling with terrorism?
That was one question addressed at a recent symposium on "Revitalizing International Law to Meet the Challenge of Terrorism," held at the Gregorian University. Below is an adapted address given by the dean of theology of the Regina Apostolorum Pontifical University.
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Terrorism and International Law: A Catholic Perspective
By Father Thomas D. Williams
This morning's conference will explore some of the repercussions of a changing sociopolitical landscape on our traditional understanding of law, national sovereignty, war, and the common good, especially as they relate to the growing threat and reality of terrorism.
The purpose of my lecture will be to tee up our discussion by laying out some chief lines of the Catholic Church's social teaching on these issues over the past 100 years, and to indicate what I believe to be the neuralgic questions of Catholic social doctrine that merit further study and elaboration.
My first question, the one that gives rise to the others, is: Why does the Catholic Church advocate international law? Why isn't national law sufficient? How is this international law to be understood and what are its limits and limitations?
The purpose of law: the common good
Following the doctrine of St. Thomas Aquinas, and the classical tradition he draws from, Catholic political philosophy teaches that the purpose of all law, and of the public authority that promulgates and enforces it, is the common good. Above and beyond the particular good and particular interests of individuals, exists the common good of the community.
This common good is not the good of the abstract collectivity or the state, nor is it merely the sum total of the particular goods of the individual members, but rather the good of every person both as an individual and as a social being in relation to the others.
Catholic social teaching defines the common good as "the sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfillment more fully and more easily" (see Catechism of the Catholic Church, No. 1906). It is the specific mission of the law and public authority to guarantee these social conditions for the good of all.
This ensemble of conditions comprised by the common good can be broken down into three component categories:
(1) respect for the dignity of the person as such and the protection and satisfaction of his rights,
(2) social well-being and development of the group itself (material prosperity, health, education, culture, etc.),
(3) peace: the stability and security of a just order.
The universal common good
The common good does not exist only on the level of the state or nation, but at the level of every human group or community. Thus we can speak of the common good of families, local communities, states and nations and of any other human groups that fall somewhere between. Moreover, along with the particular common good of these various human groups, we can also speak of the universal common good of the entire human family.
How can this universal common good be provided for? What is to keep the particular interests of the stronger members of human society, whether they be individuals, states or other social or economic institutions, from triumphing over the interests of weaker members?
The Catholic Church proposes two solutions to this problem, one at the level of virtue and the other at the level of structures.
The first "virtuous" solution goes by the name of solidarity. In his 1987 encyclical "Sollicitudo Rei Socialis," Pope John Paul II wrote that the growing economic, cultural, political and religious interdependence characteristic of the contemporary world constituted a moral category, to which corresponds the moral virtue of solidarity.
Solidarity, he wrote, "is not a feeling of vague compassion or shallow distress at the misfortunes of so many people, both near and far. On the contrary, it is a firm and persevering determination to commit oneself to the common good; that is to say to the good of all and of each individual, because we are all really responsible for all" (No. 38).
Solidarity, therefore, as a virtue, impels the human person and communities to expand their horizons of moral concern, looking beyond individual interests to include the needs of other individuals and groups and to act with their interests in mind.
Though this virtue must be cultivated by all persons, it is especially important for those in public authority and for those whose actions most directly affect the situation of others. Though public authority is responsible first to its own citizenry, that is, the portion of humanity under its tutelage, this priority is not exclusive, and public authority must widen the scope of its interest and concern to the whole of humanity. The Catechism in No. 1941 does not mince words when it declares: "International solidarity is a requirement of the moral order."
Where the virtue of solidarity is assimilated and practiced, tensions between nations and peoples are reduced and the universal common good is promoted.
The second "structural" solution proposed by the Church to ensure the universal common good is an international rule of law.
Every human community needs an authority and a rule of law "supra partes" to govern it and disinterestedly provide for the common good. Whereas there is a political authority that watches over the particular common good of individual nations, there is no such authority to provide for the universal common good of the world community. Moreover, no single nation or cadre of nations can supply this need.
In his 1963 encyclical "Pacem in Terris," Pope John XXIII wrote: "Today the universal common good poses problems of worldwide dimensions, which cannot be adequately tackled or solved except by the efforts of public authority endowed with a wideness of powers, structure and means of the same proportions: that is, of public authority which is in a position to operate in an effective manner on a worldwide basis. The moral order itself, therefore, demands that such a form of public authority be established" (No. 137).
This international cooperation, public authority or rule of law can take a variety of practical forms, and the Church's magisterium refrains from specifying what sort of structures need to be instituted. The path to greater legal cooperation among nations will necessarily involve overcoming substantial hurdles, such as the perception that international bodies are equally, if not more, susceptible to lobbying and particular interests than their national counterparts. It is not uncommon to hear from people that they trust their own government more than any international body.
Furthermore, on the international level as well, the Church reaffirms the vital principle of subsidiarity, which determines that "a community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its functions, but rather should support it in case of need and help to coordinate its activity with the activities of the rest of society, always with a view to the common good." This principle, first articulated in its present form by Pope Pius XI, forms and essential part of the Christian view of the social order.
Therefore, any international law or authority should not be all-encompassing or invasive regarding the internal life of nations, but should be strictly limited to areas of life that cannot practically and effectively be governed by the nations themselves. The sovereignty of nations should not be compromised by overly aggressive international legal structures.
Specific areas of international law
In the past century the need for international law or a supra-national public authority has been invoked by the Church's magisterium principally (though not exclusively) in the context of two practical aims: (1) the arbitration and peaceful solution of international conflicts, (2) a coordinated effort to assure economic development throughout the world. Both of these aims are component parts of the universal common good.
The first area of concern arises from humanity's long history of armed conflict, and the especially bitter experience of the past century's bloodshed. Though recourse to war as a means of resolving international disagreements or repairing injustices is never ruled out as a matter of principle, the Church considers such recourse to be a last resort.
She exhorts the peoples of the world to seek long-term solutions to conflict resolution that will obviate the need for war. In his 1991 encyclical "Centesimus Annus," John Paul II wrote in No. 52: "Just as the time has finally come when in individual States a system of private vendetta and reprisal has given way to the rule of law, so too a similar step forward is now urgently needed in the international community."
Since the universal common good includes the security and stability of a just international social order, creative steps must be taken to facilitate cooperation among nations and the creation of structures to ensure long-term peace.
In this regard, John Paul has written in No. 27 of the same encyclical: "What is needed are concrete steps to create or consolidate international structures capable of intervening through appropriate arbitration in the conflicts which arise between nations, so that each nation can uphold its own rights and reach a just agreement and peaceful settlement vis-à-vis the rights of others."
Development and economic solidarity
A second practical area where the Church has repeatedly advocated international legal structures is the sphere of economic development. Whereas in the developed world legal structures exist which protect the rights of workers and demand accountability from economic enterprises, such structures are often lacking in less developed nations, which makes the latter enticing targets for exploitation by unscrupulous business interests.
International trade itself also requires legal structures and authorities capable of redressing injustices. Furthermore, some nations are effectively excluded from development because they do not offer interesting market opportunities and are thus passed over for investment and trade.
John Paul II summarizes these concerns in "Centesimus Annus." In No. 58 he writes:
"Today we are facing the so called 'globalization' of the economy, a phenomenon which is not to be dismissed, since it can create unusual opportunities for greater prosperity. There is a growing feeling, however, that this increasing internationalization of the economy ought to be accompanied by effective international agencies which will oversee and direct the economy to the common good, something that an individual State, even if it were the most powerful on earth, would not be in a position to do. In order to achieve this result, it is necessary that there be increased coordination among the more powerful countries, and that in international agencies the interests of the whole human family be equally represented."
In the same encyclical, John Paul II compares the regulatory role of national business law to that of laws needed to orient international markets. He writes in No. 52:
"Just as there is a collective responsibility for avoiding war, so too there is a collective responsibility for promoting development. Just as within individual societies it is possible and right to organize a solid economy which will direct the functioning of the market to the common good, so too there is a similar need for adequate interventions on the international level."
With these more general principles of Catholic social teaching in mind, we can now turn our attention to the specific question that concerns us today regarding the role of international law for resolving international conflicts and especially the problem of international terrorism. To accomplish this we need to examine a few specific characteristics of the contemporary world situation.
The "new things" of today
Though acute interest in questions of social justice have accompanied the mission of the Church since its very origins, the corpus of Catholic social teaching as understood today formally began with the promulgation of Pope Leo XIII's encyclical "Rerum Novarum" in 1891.
The evocative title "Of New Things" has been repeatedly cited by popes since Leo as a call to continually reread Catholic social teaching in the light of current social, political and economic realities. In the spirit of this healthy tradition, what are some of the new things of today as relating to the question of international law and peace?
The fundamental magisterial document dealing with these issues is the Second Vatican Council's pastoral constitution on the Church in the modern world, "Gaudium et Spes." This text treats the role of the Church in the world, meaning, principally, the role of the Catholic laity in the evangelization of the temporal order so that the diverse components of society will conform more and more to the requirements of the common good.
The document was promulgated on Dec. 7, 1965, by Pope Paul VI at the height of the Cold War, 20 years after the end of World War II, 15 years after the outbreak of the Korean War, nine years after Soviet Premier Nikita Khrushchev's U.N. outbreak in which he pounded his shoe upon the podium and shouted to U.S. representatives "We will bury you!" and just four years after the Cuban Missile Crisis.
At this time, fears revolved around an all-out nuclear conflagration between the major superpowers, and it seemed to many that the only thing preventing war was the assurance of mutual destruction in which no one side could win. If we read this document carefully, we see that many of the Church's statements then and afterward revolved around these well-grounded fears.
"Gaudium et Spes" in No. 80 states that "the horror and perversity of war is immensely magnified by the addition of scientific weapons. For acts of war involving these weapons can inflict massive and indiscriminate destruction, thus going far beyond the bounds of legitimate defense."
Indeed, if the kind of instruments which can now be found in the armories of the great nations were to be employed to their fullest, the document continues, "an almost total and altogether reciprocal slaughter of each side by the other would follow."
And the conclusion drawn follows directly on these premises: "All these considerations compel us to undertake an evaluation of war with an entirely new attitude."
These considerations followed closely on the 1963 encyclical, "Pacem in Terris," where John XXIII wrote in No. 127: "Thus, in this age which boasts of its atomic power, it no longer makes sense to maintain that war is a fit instrument with which to repair the violation of justice."
Catholic moral theology has traditionally distinguished between the morality of going to war ("ius ad bellum") and moral conduct during the war itself ("ius in bello"). Yet it was reasonable to ask whether going to war could ever again be morally justified when moral conduct during the war was rendered impossible by the nature of the arms being used.
Moral criteria employed for evaluating conduct during war ("in bello") include the principle of discrimination, whereby sufficient distinction must be made between combatants and civilians, and the principle of proportionality, whereby the force used must be proportionate to the ends sought. With the advent of extremely powerful nuclear weapons, these last two criteria seemed to many impossible to satisfy.
Though such statements as those we read a moment ago undoubtedly reflected the feeling and fears of the times, the far-reaching effects of modern weaponry continue to provoke serious concern. As recently as 1991, just two years after the fall of the Berlin Wall, John Paul II wrote in "Centesimus Annus," No. 51:
"It is not hard to see that the terrifying power of the means of destruction -- to which even medium and small sized countries have access -- and the ever closer links between the peoples of the whole world make it very difficult or practically impossible to limit the consequences of a conflict."
Yet in contemporary reflections on just war theory the ongoing development of ever more precise weaponry must be added to the equation. Recent experience has shown that such advances have made possible more limited warfare and discriminate strikes on strategic military targets with fewer civilian casualties and less destruction of property.
Such military development can in no way lessen our unflagging commitment to peace, but should nonetheless be included in objectively evaluating specific military action.
Along with technological advances aimed at limiting war's consequences, a second "new thing" of today concerns us especially in our present discussion: the increasing use and scope of terrorist attacks. The terrorist attacks of Sept. 11, 2001, on the United States and the more recent Madrid bombings provide just two examples of the real threat that international terrorism imposes on modern civilization.
The fears and insecurity that have arisen in the civilian population as a result of these atrocities, without mentioning the consequences on travelers and heightened racial and religious strife, are simply beyond calculation.
The specific characteristics of terrorism vis-à-vis traditional state-on-state warfare to be addressed by my colleagues call for new applications of traditional elements of Catholic social thought. It is clear that in the face of this threat international cooperation becomes more, rather than less, important, while a nation's right to legitimate self-defense must be consistently upheld.