War, violence, and the different voices of law 

Sine Holen, University of Oslo and Norwegian Defence University College

Inter arma enim silent lēgēs 

(“In times of war, the law falls silent.”)

Today, we are witnessing endless instances of the law failing to prevent death and suffering in war. More than 100 million people – one in every 78 people on earth – have been forced to flee their homes because of conflicts and violence (UNHCR, 2022). Violations of international law, including targeting civilians, are alarmingly high. Meanwhile, the UN Security Council is made impotent by the politics of its permanent members, as the Ukraine war has frosted relations to a new rock bottom.

Indeed, it is hard to be an optimist about law these days. It is, therefore, not startling that several sociolegal scholars postulate that people nowadays feel alienated from law. Sarat (2017), for example, argues that fewer people are willing to support the rule of law, while Hertogh (2018) reasons that people no longer identify with law and instead find law foreign, distant, and incomprehensible. He suggests ‘legal alienation’ as a contemporary phenomenon, a stark contrast to ‘legal hegemony’ and the salience of law as offered by Ewick and Silbey in their seminal book ‘The commonplace of law’ published in 1998. 

The ‘justice cascade’ (Sikkink, 2011) of the decade when Ewick and Silbey’s released this aforementioned piece is worth mentioning. The same year their book was published, the Rome Statute of the International Criminal Court was adopted among a plethora of legislation and criminal prosecution procedures protecting people. The following year, in 1999, NATO launched a military campaign under the banner of humanity to stop atrocities against Kosovans, while the UN authorized military intervention to defend people in Sierra Leone, the first of many’ protection of civilians’ mandates. 

The idealism of the 1990s and what law might achieve has perhaps paled. What remains, however, are plural, dense, and ambitious official law and policy that security practitioners operating in conflicts should defend. Among these is the ambition that military personnel always consider safeguarding civilians from physical violence threatened by third-party actors (e.g. NATO, 2016).

In my article for The Journal of Law and Society ‘A duty to protect? Legal consciousness among military officers in armed conflict (Vol 50, Issue 1, 2023) I use the experiences of Norwegian military officers to explore the process by which soldiers decide whether to intercept witnessed violence against civilians. These officers have served in international operations where they have had to decide if and how to respond in critical situations, effectively becoming executors of the law.

Supporting Hertogh’s sentiment of ‘legal powerlessness’ (2018), the growing number of detailed legal rules makes it harder for international soldiers to know the law and determine which rule should govern their actions. Such feelings especially erupt as they often serve in places where, for some armed actors, official law does not matter at all. But unlike Hertogh’s study, the officers I interviewed did not display an erosion in law’s legitimacy. The officers very much identify with law and display a sentiment of being comfortable abiding and even championing law. However, they do not display an unrelenting faith in the law and an unconditional embrace of law’s authority. 

Moreover, as they understand it, the ‘law’, is not necessarily a black-letter official rule. Instead, they employ different sources of authority that they consider meaningful and legal, rooted in formal state law, military structure, and a personal ethic. In other words, their legal ideas are true to the definition of ‘legality’ – as an assemblage of formal state law, morals, expectations, and social norms and commands (Silbey, 2019). They draw on and combine different legal concepts and relationships to law – obeying it, creatively manoeuvring around it, or resisting it – as they are motivated to meet the needs of a particular situation. They situationally seek to determine which source of legality, if upheld, might generate the best possible outcome. And in their pursuit of the best solution that fits the purpose of a situation, formal state law is sometimes upheld and followed and sometimes rejected.

These officers’ stories reveal that law is not an external rule or authority forced upon them. Instead, they engage in a creative process of using and creating law, revealing how people can simultaneously support the domination of ‘law’ and feel disconnected from it. When they resist law it is not about refuting legal authority or any disdain for law, but that upholding a formal rule would counter what they consider a better solution. What we may take from their narrations is cause to move beyond an exclusive focus on how formal state law is projected onto actors in violent conflict (and whether or not specific law is complied with) to a broader appreciation of the extent to which these values maintain their original forms. In other words, how social actors shape – and even transform – the very meaning of what it means to comply with or violate the law. 

The debate about the role of law in societies today is essential – both in peace and in war. The honeymoon hope of what law can offer to shield and protect may have passed. However, this makes finding out what people do put their loyalty and obedience towards ever more important to investigate. Which legal sources are drawn on, and when do they bring on compliant action?

The law is not silent in war, as spoken by Cicero, but rather speaks with many different voices. We need to listen to and systematically investigate these voices to understand better the relationship between social actors’ simultaneous compliance, manipulation, and resistance to law and legality. Let us take the knowledge of the current public discontent with law as an encouragement to dig deeper into people’s sense of justice and discretionary use of law.

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Carsten Hagen

November 25, 2022

Sine, an important debate! Soldiers and officers are often more under the effects of culture, values and non-descript rules that are imposed on their actions by the actual ruling authorities. These being local tactical commanders or state leaders. Local, national or subcultural understanding of moral or ethics often supersedes international law. Different cultures value humanity hugely different and more than any internationally agreed judicial text may express, if it is even read and understood. The international society must never stop the work. A common understanding of humanity, international law and responsibility is the ultimate goal. ...just a short comment, keep up the good work.