IN THE EVENTS OF WAR, THE LAW FALLS SILENT

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. 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 may mean a formal state of war or when the war is in progress
and it is opposed 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, the definition of an armed conflict have been
left to be interpreted under customary international law. Generally it 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
1
, 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
2
But as stated by
Christine Gray 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 (2010,
626). A significant degree of involvement by the government is must for this conception of
an armed attack. After the 9/11 terrorist attacks against United States of America, the

1
Citation of the case
2
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America, Merits,
Judgment, ICJ Reports 1986, p 14, para 194.
apprehension of the word armed attack has been broadened to include the attacks by terrorist
forces without the involvement of government forces. This can be said because though
security council never pronounced terrorist attacks to be considered as armed attacks, it did
characterize these to be treat to peace and it also recognised the right to self defence in the
preambles to resolution 1368 and 1373 condemning the attack.
3
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 armed
conflicts. Common Article 3 to the 1949 Geneva Conventions and the 1977
Additional Protocol II concern the lat ter category of armed conflicts but the case
of Prosecutor v Dusko Tadic, decided by the International Criminal Tribunal for
the former Yugoslavia (ICTY), concluded that overall control of a rebel group
would be sufficient to internationalise the conflict. The standard set by the
Tribunal does not require the issuing of specific orders by the State, or its
direction of each individual operation; it is sufficient that a state has a role in
organizing, coordinating or planning the military actions of a given non-state
armed group.
4
This has to an extent eroded the distinction between international
armed conflicts and non-international armed conflict. The distinction no longer
matters in practice.
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).
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
no longer functioning in an actual theatre of war. This marks the origination of the idea in
times of war, the law falls silent.
5
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

3333
SC Res 1368 (12 September 2001); SC Res 1373 (28 September 2001.
4
citation
5
citation
America has always shown its belief to this maxim. The United States government has
invoked the exigencies of wartime to justify domestic surveillance, espionage and other
covert activities. 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, the United States has had a long and illustrious history of
resorting to and permitting widespread violations of individual privacy during wartime.(Sun,
Jimmy. (2007) Inter Arma Silent Leges. CS 199r- Final Project, Havard) 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.(Sun, Jimmy. (2007) Inter Arma Silent Leges. CS 199r-
Final Project, Havard).
The conventional explanation for the laws of war is that they serve humanitarian values, but it is
hard to find a detailed defense of this position. The necessity and discrimination principles are
usually identified with the humanitarian premise, as if they were logically entailed. Other
principles or rules, such as those against perfidy, are said to reflect chivalric values.
6

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
Yougoslavia where NATO targeted 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.

6
Meron, The Humanization of Humanitarian Law, 94 Amer. J. Intl L. 239 (2000).
In Melbourne Journal of International Law, it is stated 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. But the
question is, can civil liberty or personal confidentiality be rated on a higher pedestal when
sovereignty of the nation is threatened. Of 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.