The Law of War: Inter Arma Silent Leges. What about the Strike on Syria?
by Mary W Maxwell, PhD, LLB

In my view of history, politics, and biology, there is no such thing as a “law” of war. War is physical battle between two parties. That’s the opposite of law, in which a society lays down rules by which all members must behave.

History is full of battles, including ones we will never know about as they were not recorded, or were wrongly recorded. (Note how Gerry Docherty and Jim Macgregor have, as recently as 2014, put paid to the “received” version of World War I in their book “Hidden History.”) The human future, too, will be full of battles, as that is one of the biological ways in which a group gains dominance over others, or grabs resources.

The strike by the US on Syria two days ago has given rise to this article, which is about the law of war. I will first comment on any “law of war” that could possibly be used as a means of judging whether the action was right or wrong.

Dual Morality

Oops, I’m already in intellectual trouble just by bringing the concept of “right or wrong” into a discussion of war. People today have been fooled into thinking that was can be carried out in a way that would be approved by all observers. Nonsense! All’s “FAIR” in love and war.

And what is the source of that type of “fairness”? It is our own personal – but nearly always disguised – willingness to do, in cahoots with our compatriots, whatever is required in our interest.

We humans evolved with a dual morality. One of the two sides is the type of morality that has the usual “right and wrong” in it – the other is just a strategic guide for winning intertribal confrontations. Such confrontations may be of the self-defensive type, the rivalry type, or the out-and-out predation type -- it doesn’t matter.

The human moral instinct that guides the behavior of a society at war is: Do what you need to do to win. Be brave. Be ruthless. Punish a deserter severely. Allow no criticism of the leader. Lie to your own people about the strength of the other side, etc.

That said, we can see that there would not be a law governing the behavior of warriors. I subscribe in full to the motto “Inter arma silent leges”: in times of war the law is silent. Betcha five dollars you can’t think of a case where that is not true.

Wait -- isn’t there a tradition of theorizing about "the just war"? Well, yes but it is foolish. I wonder if it was invented to throw thinkers off the scent of what is really going on, namely power.

The just war theory incorporates “jus ad bellum” and “jus in bello” -- respectively, the law (jus) of when you can go to war (bellum), and the law of what you’re allowed to do once you are waging war.

Roughly, jus ad bellum says: “You can “morally” go to war for self-defense or some other good cause. Roughly, jus in bello says: in a battle both parties agree that they will restrain themselves from various “horrible” things.

There is no international law to enforce either jus ad bellum or jus in bello. And if a law is not enforceable it should not exist. I will come back to that later.

The US Constitution

The Great Republic – if I may use that term – had an unusual beginning. A few British colonies had been set up by royal charter, such as the Massachusetts Bay Colony of 1620, or the Jamestown Settlement of 1607 in Virginia. After a while, 13 of them decided to unite under “articles of confederation,” and to declare independence from the motherland. Or something like that.

By 1787, the leaders of the 13 colonies, now re-named the 13 states, determined that they wanted a stronger union. As they said in the preamble to the Constitution:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

The first sentence after that is:
“All legislative Powers herein granted shall be vested in a Congress.” Thus, if the nation has anything to say about a law of war it would have to come from Congress. And it does.

Congress’s Power To Grant “Reprisal”

The US Constitution makes 18 particular grants of power to Congress. “grants”? “to”? Yes, it was the state delegates to the Constitutional convention who did the granting. They gave stuff to Congress. There would be no Congress but for their having done so.

(And who were they to do so? Bunch of old white men? Yes, 55 of them, but their draft Constitution was subject to ratification by the people -- and the people really did get involved in debating every bit of it. Yay!)

A few of the 18 “grants of power” -- listed in Article I, section 8 -- have to do with war. Most importantly, Clause 11 (of section 8) empowers Congress -- NOT the president -- to declare war.

Specific wording of Clause 11 is: The Congress shall have the power…to declare War, grant Letters of Marque and Reprisal…”

The Letters of Marque meant that owners of ships were allowed to capture enemy ships as though they were pirate ships. These owners were called privateers and a whole court (the prize court) was ready to receive their booty, and pay them for their efforts.

The last time Congress issued such Letters was in the War of 1812. Although the practice has thereby fallen off, Congress can’t legislate to repeal something in the Constitution -- that would take an amendment. So at least some aspect of citizens engaging in war “privately” is possible – but you mustn’t do it without a Letter issued by Congress.

The Morality of the Syrian Strike?

As for the power to declare war, it rests with Congress, not the executive. So when we look at the recent strike on Syria, and its legality, an American citizen should look at it with regard to its domestic legitimacy. We can ask “Can Trump order a strike on Syria without Congress’s say-so?” The answer of course is No.

That is not the kind of answer that persons around the world are interested to hear. They want to say “Look how outrageous it is that America, while not in any way threated by Syria, goes in and kills people.”

Onlookers naturally judge such activity to be morally wrong. It looks wrong. Surely it is wrong. It’s lousy. But when we see a wrong we tend to ask what the law says. That is, we want to say "What has the US done wrong, exactly, by attacking Syria?"

As stated above, I do not respect any writing or documents that call themselves an international law of war. Indeed the existence of such documents is a sinister factor. Think how some people devote a lifetime to seeing how they can make that law work, yet they will never be able to make it work.

International law cannot work for many reasons (a major one being our dual morality as mentioned above). The ultimate obstacle is the lack of any authority to enforce it. If you have just said “The UN,” go to the back of the class and put a cone on your head. If you said "the International Criminal Court," put a cone on your head and face the corner.

I claim that to express a law in words and provide no mechanism for redress of the breaches of that law is a terrible thing. It keeps people off balance. It is always better to work from a basis of reality.

The Value of Domestic Law

Attention to the domestic law of the US, by Americans, would go some way to eliminating killer-strikes against Syria. All members of Congress who have allowed recent presidents to make war on their own “authority” should be kicked out of office (and also, indicted for treason, in my opinion).

Now let’s see what would happen if US citizens looked at their own nation’s law of war. They would see that the Framers of the Constitution in 1787 made a definite decision to withhold from the Executive the war-making power. In England, King George had the right to decide that all the lads would traipse off to war. Here, the people would decide, via Congress.

By mentioning “lads” I am calling on citizens’ selfish interest. People should only want their lads to engage in something that will be of benefit. Again on a selfish basis, an American might consider that a strike on Syria could harm America’s reputation in ways that will come home to haunt Americans.

Nothing wrong with appealing to interest even when moralizing. If you look close enough most morality is “in our interest.”

Whence the Need To Propagandize Americans?

On the Internet I found this:

“Recent news reports that the regime of Syrian president Bashar Assad used chemical weapons against its own people have amplified calls for the United States to intervene militarily. The images of victims of the chemical attack, which shock the conscience and grieve the soul, all but cry out for a response.”

Aha! Whoever is putting that sort of thing out in the media wants to use people’s moral sentiment. They want citizens to believe that a naughty dictator somewhere in the world requires a slap from the Very Godly Nation, aka Uncle Sam.

There is a big complicating factor here. I refer to it as “World Government” or “the cabal.” That is, research tells me that the entire Middle Eastern scene is a plaything of World Government and that the bringing about of a sarin-gas attack is likely to have been a false flag.

That is, the gassing was done “in Assad’s name” as it were, but was (more likely) done by the Powers that seem to have almost free reign. An example is NATO. The organization known as NATO does not even have as much accountability as was laid out above for the Americans in their Constitution! It is remarkably free of any “law” that you could hold it to.

(Go on, try holding it to a law. I wanna watch.)

NATO is Organized Violence, isn’t it? But that’s not my point at the moment. I am arguing that in order to arouse popular support within the US for an attack on Syria, the picture is presented of the US military doing something “nice.” It’s acting against those who harm children. Aw, lovely.

I gather that if Americans saw the real facts (let me assume here that it was not Assad who “gassed his own people”), they would not want to “sign the declaration of war” to hit Syria. In other words, the law of the Constitution would do what the moral thing is. People would tell their representatives in Congress to refrain from striking Syria.

See? No international law needed for that.

See? It is the media that is interfering. Presumably the media is controlled by World Government and if World Government wants the US to “take out” seven countries – as Gen Wesley Clark said – no one will stop it.

At least no one will stop it if they don’t understand who’s who, and if they think the UN or the “International Criminal Court” (cone, please) will step in.

Note: Wesley Clark (“call me Wes”) was NATO Supreme Allied Commander Europe from 1997-2000. To whom was he accountable? Was he accountable to American law? Does the big strong nation, the Great Republic, have any control over NATO?

It sure does. You can find it in the US Constitution.

-- Mary W Maxwell is the author of "Prosecution for Treason," and many other books, most recently "Inquest: Siege in Sydney." She writes for GumshoeNews.com in Oz. See below her Gumshoe article on the law of covert operations. Below please find the link to a Youtube video she made back in 2013 when Obama seemed to want to strike Syria. Maxwell is the Maxwell in Maxwell v Bush, a court case seeking an injunction against Bush's threat to attack Iran and Syria in 2006, partly on a separation of powers argument. The case was dismissed in federal district court NH.