IN THE EVENTS OF WAR, THE LAW FALLS SILENT

During war, law is not silent; it falls on deaf years

The phrase In the events of war, the law falls silent finds its origin in a published oration
Pro Milone by Marcus Tullius Cicero who is a Roman Philosopher and renowned orator.
Most of Ciceros work on politics and philosophy have been written in Latin language and
his original wordings for this phrase were Silent enim leges inter arma which in modern days
is used in a modified way as Inter arma enim silent leges meaning For among arms, the law
fall mute.
The purpose of this essay is to analyse the hold of the phrase In the events of war, the law
falls silent in current era. We will examine its existence and practice in the world with
reference to contemporary International Humanitarian Laws. We will go through few case
studies in order understand the meaning of wars, armed conflicts and interpretation of this
phrase in such times. We will be referring to the case of Nicaragua v United States of
America, Prosecutor v Dusko Tadic. We will consider the attitude of United States
regarding this issue and we will also analyse the recent conflicts in Libya and Yugoslavia. In
the end we will be able to formulate our views regarding this highly debated issue and answer
the question does law falls silent in wartimes?
Wartime in its literal sense means a formal state of war and it is an antonym to peace times.
International Humanitarian Law is also referred as the law of armed conflict which regulates
the conduct of hostilities-including the use of weaponry-and the protection of victims in
situation of both international and non-international armed conflict (David Turns 2010, 814).
Traditionally, armed conflict was understood as attacks by regular forces of one state against
the territory of the other state. But in the case of Nicaragua v United States of America, ICJ
held that an armed attack must be understood as including the sending by or on behalf of a
state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed forces
against another state of such gravity as to amount to an actual armed attack, or its substantial
involvement therein
1
But the court did not consider the concept of armed attack stretches as
far as assistance to rebels in the form of provision of weapons or logistical or other support

1
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America, Merits,
Judgment, ICJ Reports 1986, p 14, Para 194.
(Christine Gray 2010, 626). A significant degree of involvement by the government is must..
After the 9/11 terrorist attacks against United States of America, the apprehension of the
word armed attack has been broadened to include the attacks by terrorist forces without the
involvement of government forces. There are two types of armed conflict, International
armed conflict which refers to to all cases of declared war or of any other armed conflict
which may arise between two or more of the High Contracting Parties, even if the state of
war is not recognized by one of them and Non-International armed conflicts refers to all
armed conflicts not of international character occurring in the territory of one of the High
Contracting Parties. The four Geneva Conventions of 1949 but Common article 3
and 1977 Additional Protocol I concern international ar med conflicts. Common
Article 3 to the 1949 Geneva Conventions and the 1977 Additional Protocol II
concern the latter category of armed conflicts but the case of Prosecutor v Dusko
Tadic, decided by the International Criminal Tribunal for the former Yugoslavia,
concluded that overall control of a rebel group would be sufficient t o
internationalise the conflict.
2
This has to an extent eroded the distinction
between international armed conflicts and non-international armed conflict. The
distinction no longer matters in practice.
During war times, lawlessness does creep into the territory because the
government diverts its attention and starts employing all its resources in another
direction rather than keeping up law and order in the territory. The immediate aim
is to defeat the enemy and for accomplishing this objective, others are
undermined which is to an extent justified so as to prevent further destruction and
ultimate fall of the structure of society. For instance, the law does provide for
distinction to be made between civilians and combatants by the conflicting parties
(A48 API) but in that crisis situation it is impossible to be perfect or accurate in
this respect and hence the law has to be avoided. Even the civilians are scared
and they focus on saving their own lives and in the process they overstep the
boundary created by law. So, in times of war, the law is not silent rather it falls
on deaf years. We avoid adhering to it in order to achieve our respective aims and
thus the lawlessness is bound to emerge.
In the case Ex Parte Milligan, (1866), the U.S. Supreme Court ruled that the federal
government could not establish military courts to try civilians except where civil courts were

2
IT-94-1-T, May 7, 1997
no longer functioning in an actual theatre of war.
3
This marks the origination of the idea in
times of war, the law falls silent. The Supreme Court held that all laws and enactments are
provisions of peace time and are considered to be silent during war because during these
times security of nation and safety of people becomes the supreme law. United States of
America has always shown its belief to this maxim. From the Revolutionary War, when
Washington intercepted British letters, both civilian and military, to the Civil War, when
Lincoln suspended habeas corpus and wiretapped telegraph lines, to the Cold War, where the
covert operations of the FBIs COINTELPRO division used wiretapping, surreptitious entry
and other methods of dubious legality with impunity.
4
On 26 October 2001, President
George W. Bush signed into law USA PATRIOT Act which stands for Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001. It is then highly instructive to examine the historical trajectory of US
government violation of civil liberties, particularly personal privacy, in analyzing and
understanding current legislation and methodology employed by the government in the War
on Terror.
5

In my opinion, the law does not fall silent during the times of war but it becomes extremely
weak. The point being nobody wishes to listen to it during wars and hence it starts losing its
hold. In Libya, NATO is accused for deaths of large number of civilians in the recent armed
conflicts. NATO is also accused of attacking bridges, TV stations, schools and even
hospitals. Though NATO denies targeting civilians, they regret these deaths for which they
were responsible. NATO claimed of targeting only official military targets and trying their
best to keep the number of civilian deaths to minimal. It is a big question today weather
investigations will be held against NATO for war crimes or not? Similar situation was in
Yugoslavia where NATO targets include the civilian airports, government buildings, ancient
buildings and the countrys historical and cultural heritage. It clearly indicates the attitude of
world towards the maxim we are analysing.
It is advocated that to allow the use of force for good to ignore the fundamental tenets of
distinction, proportionality and limitation is to greatly weaken a legal regime based on the
concept of neutrality of purpose.
6
But the question is can civil liberty or personal
confidentiality be rated on a higher pedestal when sovereignty of the nation is threatened. Of

3
71 U.S. 2 (1866)
4
Sun, Jimmy. (2007) Inter Arma Silent Leges. CS 199r- Final Project, Harvard
5
Sun, Jimmy. (2007) Inter Arma Silent Leges. CS 199r- Final Project, Harvard
6
A. Duxbury, Drawing lines in the sand Characterising conflicts for the purposes of teaching international
humanitarian law (2007) 8The Melbourne Journal of international Law. P 258.

course, we cannot afford to do that. For greater good of the community, we have to sacrifice
on this note. At times the laws have to bend a bit so as to accommodate policies which are
needed to prevent the ultimate collapse of a well established society. We must never use war
as an excuse to ignore the law. Therefore the law may bend but should never break.



REFERENCES

1. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United
States of America, Merits, Judgment, ICJ Reports 1986, p 14, Para 194.
2. David Turns (2010) The Law of Armed Conflict (International humanitarian Law)
in Malcolm D. Evans, eds. International Law. Oxford University Press.
3. Christine Gray (2010) The Use of Force and The International Legal Order in
Malcolm D. Evans, eds. International Law. Oxford University Press.
4. A. Duxbury, Drawing lines in the sand Characterising conflicts for the purposes of
teaching international humanitarian law (2007) 8The Melbourne Journal of
international Law.
5. Sun, Jimmy. (2007) Inter Arma Silent Leges. CS 199r- Final Project, Harvard.