Iter Arma Leges Silent
Updated: Sep 3, 2020
BY- SREYASI BHATTACHARYA
(HERITAGE LAW COLLEGE)
The Latin phrase “Inter Arma Leges Silent”, has been originated from the published oration “Pro Tito Annio Milone ad iudicem oratio (Pro Milone)", a speech which was made by the Roman lawyer, statesman, and the philosopher Marcus Tullis Cicero for his friend Titus Annius Milo, who was accused of murdering Publius Clodius Pulcher, who was his political enemy. The original aphorism was "silent enim leges inter arma” which was later modified as "Inter Arma Enim Silent Leges” or “Inter Arma leges Silent", meaning "amid the war, the law falls silent”. The true meaning to the maxim is that during any military emergency, the civil laws be suspended concerning the national interest in self-defence.
Similar to Cicero"s speech, Carl von Clausewitz in his famous work 'On War' wrote that 'war is an act of force on the enemy, to which certain self-imposed, and unnoticeable limitations known as International Law and customs are attached.
Ex parte Milligan,[71 U.S. (1866)] was a landmark case during the American Civil War. Lambdin Milligan was charged by the military commission of having any involvement conspiring against the federal government. He was tried in the military court even when he was not involved. Justice Davis held that a military commission had no jurisdiction to try an ordinary citizen who was neither a resident of the involved rebellious states nor a prisoner of war (POW). The court gave the judgement that the Constitution of the United States is both for the people and the rulers, which are equal in both war and peace, and which protects with its shield every person, anytime, and under any circumstance. When the government is undisputed, peace prevails, and there is not much difficulty in preserving and safeguarding liberty; but when society is disturbed due to civil commotions, there are safeguards needed and the society should receive the watchful care of those who are entrusted with the responsibility of protecting the laws and the Constitution. Milligan has been argued by the scholars that it denies the phrase 'war silent law', but in return shows "during the war, the law speaks louder".
On the other hand, the case of Korematsu v. the United States,[323 U.S. 214 (1944)] in which the Supreme Court in a 6-3 decision, held that the detention was done for military necessity and was not based on racial grounds. The case has been highly criticized by scholars saying it was an extremely unpleasant act done by the American Jurisprudence.
Thus, the case Milligan implied that justice should especially be observant in protecting rights and liberties during the disturbances in society. On the other hand, Korematsu commended that justice should especially be willing to subordinate rights and liberties when the state has got threatened.
Many instances in past and present times show how war has silenced the laws around the world. There have been many arguments among scholars over this statement. But this statement has consistently been denied time and again. A well-known example of this is the disagreement of Lord Atkin in the case of Liversidge v. Anderson,[(1942) A.C. 206], where the Secretary of the State, in good faith under 18B of the Defence Regulations, 1939, made an order in which he had recited that he had the reasonable cause to believe that a person was a part of the hostile association and therefore, the person should be detained. It also read that a Court of law would not inquire whether the Secretary of the State had reasonable grounds to detain the person.
When Laws Fell Silent:
There are some major events which raise the question of whether the law falls silent during the times of war. Major events listed are:
· In Ancient Rome, during 130- 49 B.C., mob violence was common. The leaders led the armed gangs who made chaos in the streets of Rome, but such leaders were later elected at high offices.
· Civil Liberties in the Civil War, Maryland:
Abraham Lincoln has always been regarded as one of the greatest President of all time. Even though his presidency is known for the many successes achieved, little has been interpreted on the subject to Civil Liberties during the Civil War, which has often been considered as the dark side of his presidency. The suspension of the writ of Habeas Corpus by Abraham Lincoln has been criticized and challenged by many scholars.
Ex Parte Merryman, [ 17 F. Cas. 144 C.C.D Md. 1861 ], is a well-known case during the American Civil War. During the war, the President faced several difficulties as Washington was a part of the slave territory. Thus, on April 27, 1861, Abraham Lincoln suspended the writ of Habeas Corpus between Philadelphia and Washington D.C. to silence the rebels. On May, John Merryman was arrested in Maryland. He was held in Baltimore where he had appealed for release under the writ of Habeas Corpus. Chief Justice Taney issued Ex Parte Merryman denying the suspension of the Writ of Habeas Corpus as the President had no power or authority to suspend a writ.
Abraham Lincoln through a deliberate campaign succeeded to suppress the civil liberties, following the suspension of habeas corpus, the arrest of the members of the legislature, intruding Maryland's elections, and closing down and arresting the editor of the Baltimore Daily Exchange newspaper and the others who were sympathetic towards the South as a military precaution. Whether Maryland would have withdrawn themselves may not be clearly understood, but Lincoln's calculation made it sure that it would not happen.
· Guantanamo Bay:
Mass imprisonment did not start or end with the Nazis. Rather, it can now be seen everywhere around the world like China, around Europe, and especially the United States. One of the evident cases in Guantanamo Bay. It began after the attack of 9/11. It is an extra-territorial detention centre to imprison the ‘illegal rivals’. The “ War On Terror” became a multidimensional global program of capturing the terrorist suspects and confining them at Guantanamo Bay, Cuba.
The first year of this program was successful including thousands of suspected terrorists were captured, prevention of large-scale terrorist attacks, imprisonment of the Al-Qaeda’s members and increase in the cooperation of counterterrorism attempts.
However, this became a matter of criticism due to several matters:
1) First, the United States government had argued that Guantanamo was outside its territorial sovereignty and hence, the detainees would not have to be provided with any significant substantive and procedural legal protections under the Constitution.
2) Second, it was unclear how and to what extent did the activities of the United
States in Guantanamo Bay comply with the International Human Rights standard.
A report in 2002 showed a Swedish citizen was captured during the post- 9/11 war in Pakistan and was detained in Guantanamo Bay. The U.S. has said that it could not determine how dangerous the detained person was because he refused to answer for which he could not be released. Earlier, the U.S. had determined that the laws of war or international humanitarian law applied to the ''war on terrorism''. But even when there were armed conflicts, to which the humanitarian laws apply, the fundamental provisions of international human rights law equally remain effective. Despite the end number of criticisms from several human rights organisations, the U.S. did not discuss its position about the individuals at Guantanamo about who should continue to be detained and that they are not of prisoner of war status. According to the United States, the Geneva Conventions applied to the Taliban detainees but they do not fulfil the status of prisoners of war. It was also a fact that Al-Qaeda fell outside the protection of the Geneva Convention. Hence, the United States refused a tribunal for deciding the status of the detainees. Some scholars argued that the detention centre under humanitarian laws and international laws could be justified but the United States had no authority to treat the detainees according to the given laws.
When Laws Did Not Fall Silent:
Administrators usually tried to suspend civilian rights during the war. There have been times when courts have upheld the maxim. Erosion of the rights of the citizens during World War II was upheld by the Supreme Court by saying that the request of curfews against members of a minority group was not unconstitutional when they originated from the group with whom the nation was at war. The dismantling denunciation of the chemical weaponry of the Syrian Government appeared as a glimmer of hope. In fact, after using its veto persistently against the interventions from the UN Security Council in the Syrian case, Russia finally made a partnership with the organisation for the prohibition of chemical weapons, and reached an agreement on the September 14, 2013. One year later, the major portions of the Syrian arsenals were destructed.
Therefore, it can be seen throughout the history of humankind, there have been both periods of dark times and times when peace prevailed. Hugo Grotius, in his famous work “On the laws of war and peace”, 1625, had argued that in war all the things which are necessary to the ends are lawful. Therefore, it cannot be said that law falls silent during war. The reason might be in shaping the behaviour of every human individual, sometimes the purpose gets onerous and may lead silencing law.
The Titus Annius Milo case and introduction of the maxim from http://www.uvm.edu/~bwalsh/Pro%20Milone%20-%20English.htm
Ex parte Milligan,[71 U.S. (1866)] from https://law.jrank.org/pages/25473/Ex-parte-Milligan-Significance.html;
Korematsu vs. the United States,[ 323 U.S. 214 (1944)] from https://www.law.cornell.edu/supremecourt/text/323/214 and https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-korematsu-v-us;
Liversidge vs. Anderson, [(1942) A.C. 206] from http://uniset.ca/other/cs5/1942AC206.html and https://lawcasesummaries.com/knowledge-base/liversidge-v-andersen-1941-ukhl-1/;
Ex Parte Merryman, [ 17 F. Cas. 144 C.C.D Md. 1861 ] from https://www.history.com/this-day-in-history/lincolns-suspension-of-habeas-corpus-is-challenged
www.oxfordreference.com for the meaning and references;
The study of emergencies from https://www.cambridge.org/core/books/emergencies-and-the-limits-of-legality/inter-arma-silent-leges-black-hole-theories-of-the-laws-of-war/33550DE5484505278B25E87D4CF30AB3;
https://scholarship.richmond.edu/law-student-publications/139/ for the study of Guantanamo Bay.
Application of Humanitarian Rights on Guantanamo Bay from https://lup.lub.lu.se/student-papers/search/publication/1556753;
https://www.bbc.com/news/world-middle-east-23876085 for the study of Syrian chemical weapons.
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