Over two thousand years ago, Marcus Tullius Cicero observed that “in times of war, the law falls silent”(Silent enim leges inter arma) (Cicero 17). Today, political philosophers, policy makers, and political leaders argue over this same topic: What laws, if any, are applicable during war? More specifically, what laws, if any, apply to war itself? These questions presuppose a shifting ethical relationship between individuals, societies, and states during a time of war that do not exist in peacetime. But the important question is whether Cicero is necessarily correct – can there exist a time and place where the law is not silent in times of war?
For nearly as long as mankind has maintained written records, it has argued over the ethical actions of war – the idea of a just war is not a Western concept. The ancient Egyptians, Babylonians, and Chinese all discussed various forms of just war. The Egyptians were known for showing great moral restraint in battle (Wilkinson 274), and Laotse – a Chinese philosopher – argued that war is undesirable and should never proceed beyond a minimal objective (Laotse 154). The Babylonians, under Sennecherib, displayed the modern jus in bello notion of distinction, when they would not destroy innocent non-combatants but they would only fight against active soldiers (Friedman 3). Even the Bible establishes the Israelite rules-of-war against the Canaanites in Deuteronomy 20. These examples appear to negate any necessary claim to Cicero’s observation.