ABSTRACT

The work of Francisco de Vitoria has enjoyed a limited revival, primarily because of a new appreciation of him as a forerunner of Hugo Grotius in the establishment of international law. Vitoria introduces two thoroughly innovative notions. First, he prohibits any slaughter of the innocent by "primary intent," thereby employing for the first time in any discussion of jus in bello the Thomistic principle of "double effect." Second, he makes clear that guilt or innocence is a material, objective fact, determined by the bearing or nonbearing of arms. Though the humanitarian sparing of "guilty" enemy soldiers and the complex problem of enslavement do not pertain specifically to the question of innocent immunity, Vitoria's reliance on the law of nations is tantamount to an indirect appeal to natural law. The resultant principle of noncombatant immunity was therefore a norm derived in part from deductive moral reasoning but dependent for its clear practical application upon accepted custom.