Is Law Silent When Arms Are Raised?

This is a chapter about war crimes and war crimes trials. In it, I sketch the history, structure, and justification of laws of war backed by criminal punishments; in the concluding section I briefly compare war crimes trials to other ways of coming to grips with war's horrors after it ends. Yet before turning to these topics, it is worth pausing to reflect on how extraordinary the entire idea of war crimes is. To conduct war crimes trials supposes that war is governed by laws, and that is by no means obvious. In Cicero's famous words, “Laws are silent when arms are raised” (silent enim leges inter arma). Even in peaceable civil society, according to Hobbes, “A man cannot lay down the right of resisting them, that assault him by force, to take away his life.” As for war, “The notions of right and wrong, justice and injustice have there no place. Where there is no common power, there is no law: where no law, no injustice. Force, and fraud, are in war the two cardinal virtues.” General Patton wrote, “War is not a contest with gloves. It is resorted to only when laws (which are rules) have failed.” Today, this “all's fair in war” idea resurfaces in a T-shirt slogan: “In war, you can be right – or you can be left.