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In war the law is dumb

Silent enim leger inter arma

Possibly the most used historical quotation in many tongues is the opening of Psalm 46: ‘God is our hope and strength, a very present help in trouble.’ 

Variations of these words, or very similar heartfelt sentiments, have been voiced by frightened soldiers – and not a few civilians faced with death and destruction – for over 4000 years. It makes the point that, after the elemental forces of nature, it is war that most scares humanity – and rightly so. Fear has ever been the universal emotion of the battlefield. Perhaps that is why mankind over the centuries has tried to limit war and control its bloody excesses. However, when societies elect to sort out their political, social and economic problems by resorting to violence, killing people and breaking things, in Cicero’s famous quotation, ‘silent enim leger inter arma‘ or (in its English translation) ‘In war the law is dumb.’

One of the ironies of history has been the urge to try and control behaviour that is by definition almost uncontrollable. Although mankind has tried to devise ‘rules’ for fighting and killing one another en masse, the truth remains that war is still nothing more than legalised murder. After the horrors of the Thirty Years War, Europeans desperately sought to find laws to channel and limit the excesses of the brutal soldiery. But the French Revolution and ‘the nation in arms’ period changed all that. Out went the 18th-century constraints of limited war leading to the full horrors of industrial war. A fight to the death between whole nations and societies was gradually unleashed, finding their ultimate expression on the Eastern Front in World War II, in the indiscriminate fire-bombings of Dresden and Tokyo and, finally, with the atom bombs dropped on Hiroshima and Nagasaki.

One effect of mankind’s new ability to obliterate and destroy on an unimaginable scale has been to encourage a new phenomenon: an increased attempt to try and control and limit war by the imposition of laws. Today, certainly in the West, we have teams of lawyers telling soldiers and generals what they can and cannot do on the battlefield. In modern warfare the law – and its all-pervasive lawyers – seem anything but dumb. Calls to indict Putin as a war criminal have eerie echoes of 1918’s ‘Hang the Kaiser!’ and overlook the massive industrial butchery of civilians from the air perfected by the RAF and USAAF by 1945. No nation has clean hands when it comes to the indiscriminate slaughter of civilians: ask the Uighars or the hapless Burmese Muslims. Even Britain has to explain away its legal right to go to war in Bosnia, Kosovo, Sierra Leone, Macedonia, Iraq and Afghanistan (among other examples). A ‘UN Mandate’ is a legal right only to those who agree, as Korea made plain.

Indignant, liberal western media rarely asks the key question: by whose law and on what authority do they call for selective legal vengeance on some aggressors? They forget the killing of innocent civilians in Afghanistan, let alone the fact that Russia has never signed up to the Rome Convention, setting up the International War Crimes Court. Nor, significantly, has the USA.  

So, anyone who expects the Russians, a proud people, to hand over their Vozhd to decadent western lawyers needs to lie down in a darkened room. Whoever fails to see echoes of the Danzig Corridor in the seizure of the Marienpol–Donbas corridor, or genuinely expects to see Russia give up its link with its only Black Sea maritime naval nuclear base in the Crimea, needs to take lessons in realpolitik and history.

The irony remains that, for those enemies waging their asymmetric campaigns against Western liberal democratic states, ‘the law’ and lawyers are the last thing they ever care about. They just want to slaughter, maim and destroy for their cause, be it territory, populations or greedy economic advantage. Mankind’s atavistic catalysts for conflicts have never gone away. Lawyers’ howls of protest or not, the old Roman was right. It was ever thus. 

Truly the reality remains: in war – real, all-out war, à l’outrance – ‘the law; remains as dumb as ever.