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michael_j_doyle [userpic]

Inter enim arma, silent leges

July 19th, 2011 (12:27 am)
current mood: unimpressed

...  is roughly translated as, "In the face of arms, the law is silent" (Wiki suggests it is more properly rendered as Cicero did: "silent enim leges inter arma"; YMMV, but I do not wish to digress). It is a legal maxim that expresses the tendency of civil legal protections to give way to military necessity, as the internment of Americans of Japanese descent during World War II (which was ultimately repudiated, but after the war was over). It was rejected outright in the Civil War, despite the exception to Habeas Corpus in cases of rebellion or invasion explicitly provided for in the US Constitution (apparently b/c Lincoln didn't seek Congressional approval),and more recently in the Guantanamo detainee case Hamdi v. Rumsfeld.

And, ya know, I don't have a problem with that. However, I must say that Cicero's argument appears to have more applicability in dismissing the charge of "Crimes against Humanity" one Daniel Fiol has laid against Barry O in the International Criminal Court at the Hague. Much as I might like to indulge in schadenfreude about Barry O the War Criminal, the charge is bullshit.

In a CQC assault on a terrorist safehouse, you don't have time to say "you're under arrest". If a known hostile does anything except instantly put a pair of empty hands up in the air, he's bought 'n' paid for - you can't give him time to reach for a suicide switch. This is the essence of "inter armes, silent leges" - civil law cannot apply in the middle of battle, because there's no time for reflection.

Even granting arguendo that this guy might have a leg to stand on with his argument (and, he may not even have legal standing before the ICC to file), among other guarantees and limitations, the Peace of Westphalia, as I understand it, made (and still makes) waging war the exclusive province of nation-states, not individuals or non-governmental organizations. Any individual who tried to throw down on a foreign power was declared outlaw, and pretty much had no rights or protections. See also Piracy and the traditional summary execution of pirates. We have since extended limited protections for outlaws who submit to capture, but there we are again - military necessity in the assault made it practically impossible to take him alive without his full and complete cooperation. Guess bin Ladin should have thought about that one before he decided to wage war on his own hook. (Historians, feel free to revise and extend on this)

As far as the argument for Pakistan's sovereignty being violated, tough cookies - the Hague Conventions require a neutral sovereign to prevent belligerents from using its territory, and allows the other belligerent to pursue into its territory if the neutral doesn't or can't comply. Here, Pakistan was a putative ally - so, tough cookies, twice over.

So, the charge is bullshit. The filing of it is not, however; it's symptomatic of a very disturbing trend. Whether it's misplaced "You're-a-peon" anti-American arrogance, or Leftist self-loathing, or simple headline hunger, there's a subset out there that seems positively eager to cut its own throat, along with the throat of every adherent to Western civilization. Krushchev famously asserted that when it came time to hang all the capitalists, a capitalist would sell him the rope. He wasn't far off. This is a lot like, "when it comes time to behead the infidels, an infidel will sharpen the swords for the Faithful."  Doesn't quite fit the definition of treason, but I can't think of a closer word for it


Posted by: Tozetre (tozetre)
Posted at: July 19th, 2011 02:17 pm (UTC)

1) As an amateur historian, when it comes to anti-state actions like bin Laden's, you're right, with the important corollary unless you win. See Atilla, Ghengis, Napoleon and Hitler for most of their careers, William the Conqueror, Charlemagne, Julius Caesar, etc., etc., etc.

2) I wouldn't call it treason- not only because there's no single nation being betrayed, but because I like many others of my generation consider nation-states an outdated concept. :P Most of us align ourselves along lines of ideology, interests, philosophical mutual defense pacts. I would call it betrayal of ideals, if they were in "our" camp, or straight-up being an enemy, if they weren't.

Posted by: michael_j_doyle (michael_j_doyle)
Posted at: July 19th, 2011 11:20 pm (UTC)

1) First, Attila, Genghis, et al, took over their own nation-states; they were effectively the sovereigns of those states when they came after everyone else. Westphalia made a distinction for treating internal power struggles separately (usually something along the lines of lese-majeste), which standard bin Ladin, as head of a transnational terrorist organization, didn't meet.

2) I think the self-destructiveness of these jackasses is what bothers me. And even that wouldn't bother me so much if the jackasses didn't want to take the rest of us with them. I remember several years ago, when a nut tried to highjack a FedEx plane and put it into a hillside (the crew subdued him with an axe handle!), my reaction was, "If you really want to kill yourself, have the common courtesy not to try and take anybody else with you..." So I suppose it comes down to a distaste for their poor manners in their choice of suicide methods. :P

Posted by: Tozetre (tozetre)
Posted at: July 19th, 2011 11:46 pm (UTC)

1) I hardly think Attila assaulting France was an internal power struggle.
2) Agreed.

Posted by: Tozetre (tozetre)
Posted at: July 19th, 2011 11:49 pm (UTC)

Ah, sorry, I'd missed a point.

To continue; Attila in the steppes, bin Laden in the steppes. Difference being that Attila won. He was head of a horde, not a nation-state. Tribal leader, had the backing of his crew, assaulted other nations. There wasn't a government for France to complain about Attila to, because the Chinese sure as hell didn't recognize his authority (until he stomped them).

My point was more that, once you've had enough military success, you move from terrorist to world leader. If bin Laden had taken over Afghanistan and then attacked the WTC, it wouldn't have reduced his status as terrorist any.

Posted by: michael_j_doyle (michael_j_doyle)
Posted at: July 20th, 2011 12:36 am (UTC)

Okay, gotcha. I'd missed a subtlety there. OTOH, "nation-state" was a bit more nebulous in Attila's day.

Posted by: Tozetre (tozetre)
Posted at: July 20th, 2011 01:22 am (UTC)

True, but there was still a difference between "monarch" over an area and "khan," in that...
Actually, now that I think about it, the primary difference was that Ghengis ruled over people whose language he didn't speak. Everyone else would have happily done what he did. Perhaps it's not a useful analogy after all.

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