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September 18, 2019 / Congau

No Laws of War

“Inter arma silent leges.” “In times of war the law falls silent.” The Romans, the masters of war, knew this obvious fact. After all, marching into another state, killing its citizens and seizing the government couldn’t possibly be done according to the laws of that state, and no other laws exist in that domain. Only in modern times have someone come up with the idea that human laws remain after the laws have been crushed. How would that be possible?

Laws are upheld by authorities who make them valid by having the power to implement them and punish the offenders. When that authority disappears, there is nothing to validate its laws. There could of course still be laws of nature, moral laws, religious laws, physical laws or whatever other phenomena that have been given the name of law, but we are here talking about positive human laws that have no other claim to validity than the authority of government.

There are still laws of war, modern theorists insist. What they mean is that there are so called international laws written by an international organization, the UN, and signed by member states, and that supposedly makes them universally valid. But laws have no other validity than the authority that upholds them and there exists no international authority.

Sure, the UN may claim a moral authority (just like any other ideal organization), but that’s just to say that there is unethical behavior connected with war and who could deny that. Clearly, bombing hospitals is wrong and torturing prisoners is also wrong, but why stop at condemning that? Why not ban war altogether?

Of course, that would have no practical effect, but neither do the laws of war that now presumably exist. Their purpose is just moral condemnation, but by limiting that to only certain kinds of unethical behavior it has the opposite effect. It seems to condone all bad acts that don’t happen to be explicitly mentioned. Killing is fine, it seems to say, as long as it is not done with certain kinds of weapons; it’s okay to slaughter soldiers; buildings that are not hospitals are acceptable targets.

There are no laws in war, but ethics doesn’t depend on law.

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