Introduction To The Law Of War
The mere absence of war is not peace.
John F. Kennedy, State of the Union Message, 14 January, 1963
A Note To The Reader: This interactive text contains hyperlinks both to complete copies of important document found at other sites and to abridged versions of the same document on this site. Those abridged versions are noted after the first link as "abridged." They have been provided for the convenience of the reader interested in substantive versions of treaties but absent information regarding such matters as structure of secretariats and provisions for entry into effect. The text is color coded as follows:
A Note To The Law Of War Student: Particularly relevant sections of underlying case readings are yellow highlighted. The student is, however, expected to at least be familiar with the entire reading. Where the case title is highlighted, as in Yamashita, the student is expected to read carefully the entire case.
A Note to German Students: To facilitate your understanding I have included German language texts of treaties where available. The hyperlink will be identified by the words "German language version."
Some Preliminary Thoughts For the 2010 Academic Year
Since 11 September, 2001 there has been considerable turmoil among those studying the law governing armed conflicts. Much of that controversy has involved treatment of persons, groups and nations which might, in some fashion be affiliated with the mass murders at the World Trade Center in New York City. As time has elapsed since 9/11 there is some argument that the rule of law has again achieved the fore, or at least, that its utility has become more obvious to those in power. Among the topics currently debated are:
1) the position of the United States that it may take military action under a "preemption" doctrine, even if the threat against it does not meet the traditional standards for justifying an armed attack under international law prior to September 11th;
2) the related position of many other nations that international peace and security continues to require United Nations Security Council approval prior to an armed response to aggression, unless there is an imminent threat;
3) treatment of persons captured in conflicts which the United States argues fall outside the traditional concepts and justifications for protection of prisoners of war, and the jurisdiction of federal courts to review that captivity;
4) what constitutes illegal means of interrogation of persons captured in conflicts and the potential liability of persons involved in, or ordering, such interrogation;
5) the rules governing belligerent occupation of the territory of a state attacked under the preemption doctrine and arguably without approval by the Security Council; and
6) the role of the United Nations in resolving and ending belligerent occupation.
In addition, definition of and military action against international terrorism, as well as prosecution of persons charged with terrorism may, and arguably should, implicate aspects of the law of war, including, inter alia, the definition of war crimes, crimes against humanity and genocide.
As of 20 January, 2009, under a new administration, a number of these positions, have changed. How they have changed, and the legal effect of those changes, are impacted by the law of armed conflict and general international law. Much of the debate is, of course, of long standing and revolves around a central question; what is the binding nature, if any, of international law? Consider the following:
|Part of Bismark's genius was
his perception that Prussian liberals, though sticklers for legality at
home, craved a minister who would tear up the treaties of 1815, destroy
the Austrian-led German Confederation, and unify the thirty-nine German
states. Karl Twesten, a Prussian progressive, frankly admitted this in
If some day a Prussian minister would step forward and say...'I have moved boundary markers, violated international law, and torn up treaties as Count Cavour has done,' gentlemen, I believe that we will not condemn him.
Geoffrey Wawro, Warfare And Society In Europe 1792-1914 p.78, Routledge (London, 2000).
All these issues must be considered in this course. And yet, it is the firm belief of the author that the underlying principles developed for some hundreds of years to control, regulate and ameliorate the frightfulness of war, are just as applicable in the post-9/11 world. A good part of the student's thought and analysis should be devoted to those questions. Keep them in mind as you proceed through the chapters which follow.
Since the attacks of 11 September, the United States has variously taken the position that it is engaged in a "Global War On Terror;" that many of the protections applicable in an armed conflict do not, for various reasons apply to some opponents in that "war;" that it was engaged in a conventional international armed conflict in Iraq in 2003 and that law governing military occupation impacted the conflict; that limitations of the law of war and treaties on means and methods of combat and treatment of non-combatants continue to apply; and that armed forces of the United States continue to enjoy the protection of international treaties protecting lawful combatants. Following the initial fighting in Iraq, as the regime crumbled, irregular and asymmetric combat emerged as the principle challenge to US occupation. The United States has variously characterized its opponents in that struggle as terrorists, irregulars, and illegal combatants. Much of the underlying legal basis for proper analysis of those positions is found within the basic question "What is war?"
Cicero's argument that "inter bellum et pacem nihil est medium" was accepted as valid analysis by the first modern international lawyer, Hugo Grotius in his classic treatise De Jure Belli ac Pacis. It was still arguably valid in the middle of the Twentieth Century when the Chief of the Legal Department of the Soviet Ministry of Foreign Affairs wrote that "...existing international law does not recognize any 'intermediate status'." Grigory I. Tunkin, Co-existence And International Law, 95 Hague Recueil des Cours (1958).
Professor Oppenheim defined war as:
...a contention between two or more States , through their armed forces, for the purposes of overpowering each other and imposing such conditions of peace as the victor pleases.
L.F.L. Oppenheim, Vol II, quoted in British Manual Of Military Law, Part III at p.5, f.n.2.
Another definition, for purposes of regulation, looks at armed conflict rather than war:
|[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State.|
Tadij Jurisdiction Decision, International Criminal Tribunal for Former Yugoslavia (ICTY) Case No. IT-94-1-AR72, para 70.
These definitions, however, were not unquestioned. As early as 1800, in Bas v. Tingy, the United States Supreme Court articulated arguments for recognition of a state of partial war.
A nice discussion of the international law principles underlying Bas may be found in Jules Lobel, Little Wars And The Constitution, 50 University Of Miami L. Rev. 61 at 66 (1995). As John Jay noted:
|...either designed or accidental violations of treaties and the laws of nations afford just causes of war.|
The Federalist No. 3. quoted in Louis Fisher, Military Tribunals And Presidential Power ( University Press of Kansas, 2005) at 20.
In his recent popular work Carnage and
Culture, Professor Hanson, states that:
|[Native peoples] had [no] abstract notion that war is the ultimate and final arbiter of politics, a uniquely Western idea that goes back to Aristotle's amoral observation in the first book of his Politics that the purpose of war is always "acquisition" and thus a logical phenomenon that takes place when one state is far stronger than the other and therefore "naturally" seeks the political subjugation of its inferior rival through any means possible. Such views are later thematic in Polybius's Histories, omnipresent in Caesar's Gallic Wars, and once again amplified and discussed in abstract terms by Western thinkers as diverse as Machiavelli, Hobbs and Clausewitz. Plato in his Laws assumed that every state would, when its resources were strained, seek to annex or incorporate land that was not its own, as a logical result of its own ambition and self-interest.|
Victor Davis Hanson, Carnage and Culture at p.213 (Anchor (New York, 2001).
Are the limited definitions satisfactory in the 21st century? Contrast them with Professors McDougal and Feliciano's argument that "it is...no new thought that this dichotomy is hardly a faithful reflection of the fluid and complex process of coercion in the contemporary world arena..." Myres McDougal and Florentino Feliciano, International Coercion And World Public Order; The General Principles Of The Law Of War, 67 Yale L.J. 771 (1958).
Professor Hanson says:
|Ultimately, war is a question of economics, in which the options of all states are confined by their ability to produce goods and services; thus, every armed force calibrates the greatest military power for the least cost. Armies in the Dark Ages and medieval era, like their classical predecessors, were not immune from such constraints, and so learned quickly that man for man, infantry could be provided for at a tenth of the expense of mounted troops.|
Hanson, Id. at p.165.
The United States Congress has
defined "war crimes" by U.S. personnel as including:
|...a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non- international armed conflict...|
18 U.S.C. §2441.
Does §2441 constitute Congressional recognition that there is a condition of "war" lying somewhere outside Cicero, Tunkin and Oppenheim?
In 1940 Llewellen Pfankuchen listed eight measures of redress short of war:
A number of those measures are clearly banned by later accepted treaties or other legal developments, but all have been seen since World War II in various guises or under other names. An interesting example at the beginning of the last century was the "pacific blockade" by Great Britain, Germany and Italy against Venezuela in 1902-03. When the United States objected to the legality of a pacific blockade which adversely affected neutral's rights, the European powers established a wartime blockade without a declaration of war. The United States accepted that action as outside the Monroe Doctrine since no permanent acquisition of Venezuelan territory was intended. Instead, the European powers seized customs houses and collected tariffs to pay off the debts owed.
Authorities have held that a state of war exists, even where neither party involved claims that status. Thus, in Kawasaki Kisen Kabushiki Kaisha of Kobe v. Bantham Steamship Company Limited, a U.K. court held that despite the statement of the Foreign Office "...that the current situation in China is indeterminate and anomalous and His Majesty's Government are not at present prepared to say that in their view a state of war exists," war might "break out without His Majesty's Government recognizing it."
Earlier (1930's forward) analysts divided the law of war into jus ad bellum (the legality of using armed force to resolve a conflict) and jus in bello (control of actual hostilities and related activities).
Summary Of Jus Ad Bellum Conditions
Most of the conditions which must be met to satisfy the requirements for jus ad bellum are found in Grotius and derived in part or as a fusion from Saint Augustine, St. Thomas Aquinas or classical antiquity:
See, Paul Christopher, The Ethics of War and Peace, (Prentice Hall, 2nd Ed. 1999) at chap. 6, pp. 81-91.
In the case of international armed conflict, it is often hard to determine which State is guilty of violating the United Nations Charter. The application of humanitarian law does not involve the denunciation of guilty parties as that would be bound to arouse controversy and paralyze implementation of the law, since each adversary would claim to be a victim of aggression. Moreover, IHL is intended to protect war victims and their fundamental rights, no matter to which party they belong. That is why jus in bello must remain independent of jus ad bellum or jus contra bellum (law on the use of force or law on the prevention of war).
ICRC publication International Humanitarian Law: Answers to Your Questions
The concept is a relatively straightforward one; that a belligerent should not be able to avoid the strictures of the laws regulating armed conflict by claiming that the cause for which opposing participants are fighting is illegitimate. Thus, for example, German claims that Polish prisoners of war were unprotected by the 1929 Geneva Convention because their state had ceased to exist were extensively considered by the drafters of the Third Geneva Convention of 1949. Germany argued that the 1929 Convention did not apply to the treatment of either Soviet or Polish prisoners, because the former was not a signatory to the Convention, and the latter no longer existed as a state. In fact, Germany turned most Polish prisoners over to the SS for use as slave laborers. The Germans also refused to treat captured partisans and resistance fighters as POWs. The problems which arise from that refusal are still applicable and still current. See, Evan Wallach Afghanistan, Querin and Uchiyama: Does the Sauce Still Suit the Gander?
A Recent Example: The United States in Afghanistan
On 11 September, 2001, thousands of civilians were murdered when armed conspirators hijacked three airliners and used them as flying bombs to attack the World Trade Center complex in New York City and the Pentagon in Washington, D.C. An additional attack was foiled by the passengers of a fourth hijacked aircraft but ended in the deaths of the passengers, crew and hijackers. The President of the United States immediately characterized those attacks as "an act of war,"1 and shortly thereafter announced that "sufficient credible evidence" existed to seek the arrest of Osama bin Laden and members of his al Qaeda organization.2
While the Taliban equivocated, the United States engaged in extensive diplomatic activity, and with the consent of surrounding countries, on 7 October, began extensive air attacks on Taliban and al Qaeda command, control, communications and military infrastructure in Afghanistan. By 21 December, 2001, the allied coalition against the Taliban was holding approximately seven thousand suspected Al Quaeda and Taliban prisoners in Afghanistan.5
Treatment of prisoners of war is covered in more detail in Chapter 5.1. For the moment though, consider the position of the United States regarding the status of those captured persons. What must an American military lawyer consider in determining whether they are to be treated as protected by the laws of war?
|What was the status of the Taliban?|
|Was it the government of Afghanistan?|
|Was it the Afghan army?|
|Was the United States at war with Afghanistan?|
|Did a state of armed conflict exist sufficient to implicate the laws of war?|
|Did the legitimacy of the Taliban's cause (arguably medievalism) affect jus ad bellum and jus in bello requirements?|
|Did a state of war exist even though neither side formally acknowledged it?|
|Following the initial successes of the Allies in Afghanistan, the Taliban has reconstituted itself along the borders with Pakistan and elsewhere. What is the status of those Taliban fighters? Was the conflict ever successfully concluded?|
In pursuing this legal and theoretical analysis, however, it is good for the student and analyst to keep in mind the reality of combat well expressed by John Keegan:
|War is not an intellectual activity but a brutally physical one. War always tends towards attrition, which is competition in inflicting and bearing bloodshed, and the nearer attrition approaches to the extreme. the less thought counts.|
John Keegan, Intelligence In War, Vantage, New York (2002) at 321.
Perhaps some guidance may be found in the discussion of the purposes and uses of the laws of war in the following section. Consider those questions as you read it.
Questions To Consider About Definition of War
|1.1.1When does a hostile relationship between two groups qualify as warfare?|
1.1.2 Can war only exist between states?
|1.1.3 What is a state under international law?|
1.1.4 How does war come into being?
In 1917 Ecuador broke diplomatic relations with Germany and opened its ports to Allied shipping. Germany regarded the action as a breach of neutrality tantamount to a declaration of war. Were Germany and Ecuador at war?
|1.1.5 Can war be defined by the status it confers on parties as belligerent or neutral?|
|1.1.6 Write your own definition of war. Rank the defining elements by their importance to a) international stability, b) maintenance of world peace, and c) human rights issues.|
|1.1.7 Examine Pfankuchen's list of Measures Short Of War. Identify one such action taken under since 1960.|
|1.1.8 Is Professor Hanson entirely correct in his statement that ultimately war is a question of economics? What about the roles of religion and ideology? Guerilla warfare? Apply your answer to the American role in Vietnam between 1965-1975.|
1.1.9 In Tadij Jurisdiction Decision, International Criminal Tribunal for Former Yugoslavia (ICTY) Case No. IT-94-1-AR72, para 70, the Court, in defining an "armed conflict," refers to "protracted armed violence between governmental authorities and organised armed groups or between such groups within a State." Under this definition is Al Qaeda an "organized armed group?" Should it be? Why or why not?
The student first examining the subject often scoffs at
the concept of a "law of war." Since the essence of the law is
predictability, how can a legal regime affect what is, by its very nature, an
inherently unpredictable series of events clouded by what Clausewitz called
"the fog of war?" A lawyer's viewpoint was well stated regarding the
essentially criminal nature of battlefield conduct:
|The laws of war, or as they are more generally referred to, the laws of armed conflict, apply during armed conflicts. They do not apply all the time and cover every situation. There are times and places when it is appropriate to apply the laws of war and there are other times, hopefully much more frequent, when it is appropriate to apply other legal regimes such as the criminal law of a state at peace. Almost by definition, war is composed of a series of acts which are ordinarily criminal by nature: killings, assaults, deprivations of liberty and destruction of property. Persons who commit such acts should not be entitled to legitimize their activities by simply pleading that they thought there was a war on and that they were fighting in it. A primary purpose of the laws of war is to minimize human suffering and destruction of values. Premature application of the laws of war may result in a net increase in human suffering because the laws of war permit violence prohibited by domestic criminal law.|
Remarks by Alfred P. Rubin, panel on "Should the laws of war apply to terrorists?" The American Society of International Law, 1985. The military view, or at least the view of the American military, is fairly stated by retired Major General William L. Nash:
|U.S. commanders are
professionals who know how to do their jobs. Commanding a modern military
operation requires great and sustained attention to legal issues. This is
not just because it behooves members of the military to understand their
rights under the Geneva Conventions and other applicable norms--which are
critically important. It is also because the reciprocal nature of the laws
of war requires that the U.S. military internalize the rules and
constraints when conducting its own operations. One need only recall the
legal basis the U.S. claims for the humane treatment and return of
captured American service members, whether in Iraq or Kosovo, to understand
why the military cares deeply about international law.
In preparing American forces for the Bosnia operation in 1995, a great deal of effort was devoted to avoiding inappropriate or inhumane action, including potential violations of the laws of war. Many hours were spent identifying "protected sites" so that the United States would not destroy them. Lawyers were included in all relevant planning and decision making. During the initial Bosnia intervention, day-to-day decisions often required moving the artillerymen to the back benches and moving the lawyers up front. This is the way of modern military operations. The United States places a high priority on following the laws of war because it is important, right and prudent.
Sewell and Kaysen, Ed.s, The United States and The International Criminal Court, Nash, The Deployment of U.S. Armed Forces at p. 157, Rowman & Littlefield (Lanham, MD, 2000).
Summary Of Purposes And Uses Of Laws Of War
If, the nature of wars is inherently chaotic, and their conduct essentially criminal, what can be the purposes and uses of a legal regime? We can posit several:
The list above is not exhaustive, but it should provide the student new to the subject with considerable food for thought. This section can, however, close profitably, with a quote from John Keegan. It should give the reader something to consider about the application of morality to law, as well as law to war.
|...the Germans...have taken since their wars of unification...a highly legalistic view of the duty owed by the occupied to the occupier, a view which, by reaction, underlay their extremely harsh treatment of resistance wherever they met it; the shooting of suspected francs-tireurs in Belgium in 1914, several thousand of them, including women and children, and their vicious suppression of internal disorder in occupied Europe in 1939-44, ranging from transportation of those captured in France to wholesale extermination of partisans in Eastern Europe.|
John Keegan, Intelligence In War, Vantage, New York (2002) at 346.
Questions To Consider About Purposes And Uses Of The Law Of War
|1.2.1 What is the argument for the existence of the law of war? The argument against?|
1.2.2 Does the law of war have any real effect on behavior?
|1.2.3 Is there an alternative approach to the essentially common law analysis generally applied?|
|1.2.4 List three purposes or uses of the law of war not discussed above.|
|1.2.5 In The United States and The International Criminal Court, Nash, The Deployment of U.S. Armed Forces, supra, at p. 157, General Nash says that "The United States places a high priority on following the laws of war because it is important, right and prudent." Does it in a post 9/11 world? Should it?|
|1.2.6 Under the then existing legal regime was Germany justified in shooting francs tireurs in 1870 and 1914?|
While armed conflicts may exist on a sliding scale between peaceful relations and declared war, they are essentially of only two kinds; international conflicts and those not of an international character. The waters are, of course muddied, by the intervention of third parties in internal conflicts and the questions which arise as to whether the intervening parties have, by their acts, changed the nature of the conflict.
The existence and increasing activity of
international organizations prepared to engage in armed conflict only expands
the possibilities. Sir Hersch Lauterpacht notes in the British Manual of Military Law (Part
|Although there may be room for argument as to whether hostilities waged for the collective enforcement of international law---in particular under the Charter of the United Nations---constitute war, both the Hague Rules and the customary rules of warfare are applicable...In addition, the 1949 Conventions which..."apply to all cases of declared war or any other armed conflict [between parties to the conventions] even if the state of war is not recognized by one of them" are applicable in conflicts which are not war in the accepted sense of the term.|
British Manual, Part III at Paragraph 7.
In addition, there is a considerable history of "private" wars and of groups (pirates and terrorists, for example) who engage in warlike acts without the privileges and immunities afforded to "state" combatants (keeping in mind that some rebel groups may straddle the status).
The common articles of those Geneva Conventions above cited provide that in
armed conflicts not of an international character, certain fundamental
humanitarian provisions will apply including non-discriminatory and humane
treatment of persons taking no part in hostilities, and a total ban on murder
of all kinds, mutilation, cruel treatment and torture, hostage taking,
humiliating and degrading treatment, and trial without minimal judicial
safeguards. They also mandate collection of and care for the sick and wounded.
|The writers upon the law of nations, speaking of the different kinds of war, distinguish them into perfect and imperfect: A perfect war is that which destroys the national peace and tranquility, and lays the foundation of every possible act of hostility; the imperfect war is that which does not entirely destroy the public tranquillity, but interrupts it only in some particulars, as in the case of reprisals.|
The Resolution, 2 U.S. 19, 21 ((Fed. App.(Pa., 1781).
There is always an intertwined question between the characterization of an armed conflict and that of the parties involved. In the Prize Cases the Supreme Court noted that when rebels "occupy and hold in a hostile manner a certain portion of territory; have declared their independence; have cast off their allegiance; have organized armies; have commenced hostilities against their former sovereign, the world acknowledges them as belligerents and their contest a war." The Court's definition is not that far off from the Article I of the 1933 Montevideo Conference on Rights and Duties of States which requires as the qualifications of statehood: (a) a permanent population, (b) a defined territory, (c) a government and (d) capacity to enter into relations with other states.
When combatants meet those criteria is, of
course, often a matter of international disagreement. That disagreement is only
heightened by conflicts over decolonialization and ethnic rivalries.
|(a) Definition of a state in
international law. The definition of a state is well established in
Under international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities....
Although the Restatement's definition of statehood requires the capacity to engage in formal relations with other states, it does not require recognition by other states. ...Recognized states enjoy certain privileges and immunities relevant to judicial proceedings, ...
The customary international law of human rights, such as the proscription of official torture, applies to states without distinction between recognized and unrecognized states. .... It would be anomalous indeed if non-recognition by the United States, which typically reflects disfavor with a foreign regime--sometimes due to human rights abuses--had the perverse effect of shielding officials of the unrecognized regime from liability for those violations of international law norms that apply only to state actors.
Appellants' allegations entitle them to prove that Karadzic's regime satisfies the criteria for a state, for purposes of those international law violations requiring state action. Srpska is alleged to control defined territory, control populations within its power, and to have entered into agreements with other governments. It has a president, a legislature, and its own currency. These circumstances readily appear to satisfy the criteria for a state in all aspects of international law.
Kadic v. Karadzic, 70 F.3d 232, 244 to 245 (2nd Cir, 1995)(citations omitted).
Questions To Consider About Distinctions Among Armed Conflicts
1.3.1 Can nations fight a war by proxy?
|1.3.2 Is there such a thing as a limited war? Will nations ever limit themselves from using weapons or tactics if certain points are passed?|
1.3.3 When does a private conflict attain war status?
1.3.4 Is a conflict a war merely because one side says so?
|1.3.5 Consider the course of U.S. conduct in Haiti in 1915. What was the relationship of the United States and Haiti? Would that relationship have changed if the Haitian government had taken a different course of action?|
|1.3.6 Given the analysis in the Prize Cases, and the attributes of the Montevideo Conference, were the Confederate States of America a sovereign nation? If so, what was the status of that country's leadership when its government collapsed in the Spring of 1865? If not, what was the status of soldiers of the Confederate Army?|
1.3.7 Was the portion of Afghanistan controlled by the Taliban a state in 2001? Your analysis should include the definition of a state discussed in Kadic v. Karadzic.
|1.3.8 Was the portion of Northern Iraq controlled by the Kurds a state in 2002? Does your analysis differ from that in question 1.3.7? How and why?|
Clearly, not only an armed
conflict, but a state of war, can exist without a formal declaration. (See, e.g.
President Franklin Roosevelt's speech to the U.S.
Congress following the Japanese attack on the naval base at Pearl Harbor). The
more interesting questions involve how and when relationships pass from a state
of peace to something other than peace, and whether that and when that status of
belligerency gives rise to international rights and obligations.
|It is ... clear that it is the State which is the victim of an armed attack which must form and declare the view that it has been so attacked.|
Nicaragua v US ¶195, International Court of Justice (1986).
Note both the legal analysis of causation, and of the preexistence of armed conflict reflected in President Wilson's 1917 request to the United States Congress for a declaration of war against Germany.
|When I addressed the Congress on the
26th of February last, I thought that it would suffice to assert our
neutral rights with arms, our right to use the seas against unlawful
interference, our right to keep our people safe against unlawful
violence. But armed neutrality, it now appears, is impracticable.
Because submarines are in effect outlaws when used as the German
submarines have been used against merchant shipping, it is impossible to
defend ships against their attacks as the law of nations has assumed
that merchantmen would defend themselves against privateers or cruisers,
visible craft giving chase upon the open sea. It is common prudence in
such circumstances, grim necessity indeed, to endeavor to destroy them
before they have shown their own intention. They must be dealt with upon
sight, if dealt with at all. The German Government denies the right of
neutrals to use arms at all within the areas of the sea which it has
proscribed, even in the defense of rights which no modern publicist has
ever before questioned their right to defend. The intimation is conveyed
that the armed guards which we have placed on our merchant ships will be
treated as beyond the pale of law and subject to be dealt with as
pirates would be. Armed neutrality is ineffectual enough at best; in
such circumstances and in the face of such pretensions it is worse than
ineffectual; it is likely only to produce what it was meant to prevent;
it is practically certain to draw us into the war without either the
rights or the effectiveness of belligerents. There is one choice we can
not make, we are incapable of making: we will not choose the path of
submission and suffer the most sacred rights of our nation and our
people to be ignored or violated. The wrongs against which we now array
ourselves are no common wrongs; they cut to the very roots of human
With a profound sense of the solemn and even tragical character of the step I am taking and of the grave responsibilities which it involves, but in unhesitating obedience to what I deem my constitutional duty, I advise that the Congress declare the recent course of the Imperial German Government to be in fact nothing less than war against the Government and people of the United States; that it formally accept the status of belligerent which has thus been thrust upon it, and that it take immediate steps not only to put the country in a more thorough state of defense but also to exert all its power and employ all its resources to bring the Government of the German Empire to terms and end the war.
Woodrow Wilson, War Message To Congress, 2 April, 1917.
Compare that analysis with Hitler's statement to his military leadership before the 1939 German invasion of Poland:
|I shall give a good reason for starting the war which propaganda can exploit--though it does not matter whether it is plausible or not. The victor will not be asked later on by the vanquished whether he told the truth or not. In starting or making war it is not right which matters but victory.|
Mosley, Leonard. On Borrowed Time, How World War II Began. Random House (New York, 1973) at 373
In The Prize Cases, the U.S. Supreme Court dealt with a number of Civil War blockade runners, who challenged the legality of that blockade in an undeclared war, and its effect on neutral nations and their vessels. In affirming the legality of the blockade, the Court noted:
|The battles of Palo Alto and Resaca de la Palma had been fought before the passage of the Act of Congress of May 13th, 1846, which recognized 'a state of war as existing by the act of the Republic of Mexico.' This act not only provided for the future prosecution of the war, but was itself a vindication and ratification of the Act of the President in accepting the challenge without a previous formal declaration of war by Congress.|
How War Comes Into Being
War may come into existence in one of three ways:
The state of war having once come into existence, may continue even though the government of the enemy state ceases to exist as a legal entity. See, Ex Rel Bottrill.
Article 1 of the Third Hague Convention of 1907 provides that "The Contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war." In light of that requirement, consider the Japanese Government's explanation in a report submitted by the post World War Two Japanese cabinet:
|That in order to make every effort to avoid making a surprise attack while negotiations were in progress, efforts were made to communicate the notifications of discontinuation of negotiations between Japan and America. (NOTE: that since we exercised our right of self-defense in light of the actual circumstances of the economic pressure etc. [the oil embargo imposed after the Japanese invasion of Vichy French territories in Indochina] imposed on the Empire, we are of the opinion that the provisions of the Hague Treaty pertaining to the commencement of hostilities can be nullified).|
Quoted in Edward Behr, Hirohito Behind The Myth, at p. 252, Villard Books (New York, 1989) (Emphasis added).
A nice discussion of whether and how a war begins, in the context of the War Powers Act and NATO intervention in Kosevo, may be found in Campbell v. Clinton, 203 F.3rd 19 (2000).
A Recent Example: The United States in Iraq
Throughout 2002 the United States demanded that the Iraqi regime under Saddam Hussein take action to comply with various Security Council resolutions arising from Iraq's 1990 invasion of Kuwait, and resulting sanctions for non-compliance with U.N. directives.1 Following repeated unsuccessful attempts by the United States to obtain a Security Council resolution authorizing immediate use of force 2 , the United States, in conjunction with certain allies, chiefly the U.K. and Australia, imposed a 48-hour deadline for Hussein and his sons to leave Iraq on March 19, 2003.3 Immediately thereafter, coalition forces commenced air attacks.4
The United States justified its actions as the conflict commenced:
Our nation enters this conflict reluctantly -- yet, our purpose is sure. The people of the United States and our friends and allies will not live at the mercy of an outlaw regime that threatens the peace with weapons of mass murder.5
For further discussion of the means and methods of warfare used, treatment of prisoners of war, occupation of territory issues, status of continuing combatants, and potential war crimes trials, see appropriate chapters of this text.
Questions To Consider About How And When Hostilities Commence
1.4.1 Was the 1941 Japanese attack on Pearl Harbor without a prior declaration of war, illegal? (See, Far East Tribunal Judgment). Was the pretextual 1939 German invasion of Poland (See, Nuremberg Tribunal Judgment)? If so, How do you distinguish:
Are these acts distinguishable, and if so how? (Hint. Was there an underlying legal justification for any of these acts? Articulate it in a lawyerlike fashion).
|1.4.2 Read the excerpts from The Prize Cases. Would any rights of the parties have been changed by a formal declaration of war? What if Great Britain had formally refused to recognize the existence of hostilities?|
|1.4.3 In late November, 2002 Australia's prime minister John Howard said he was ready to launch pre-emptive action against terrorists in neighboring Asian countries. Malaysian Prime Minister Mahathir Mohamad immediately responded that "If they used rockets or pilotless aircraft to carry out assassination, then we will consider this as an act of war and we will take action according to our laws to protect the sovereignty and independence of our country..." In such a case would Australia and Malaysia be at war?|
1.4.4 Given President Bush's 2003 statement that:
Our nation enters this conflict reluctantly -- yet, our purpose is sure. The people of the United States and our friends and allies will not live at the mercy of an outlaw regime that threatens the peace with weapons of mass murder.
Were hostilities legally commenced? Could there have been another justification for the U.S. to commence hostilities?
What then are the legal effects of war? The informed lay person might be forgiven in thinking that if any obligations of law spring from what Rubin calls "acts which are ordinarily criminal by nature," they must be of very limited scope. In fact those limitations, obligations and liabilities are broad, covering both national and individual conduct, and with considerable application even within the civil context.
Take, for example, Navios Corporation v The Ulysses II, 161 F. Supp. 932 (D. Md. 1958), in which contractual liability under a charter depended on interpretation of a contractual clause providing that "If war is declared against any present NATO countries, ... Owners or Charterers have the right to cancel this charter party upon completion of that particular voyage vessel is engaged upon." Following the seizure by Great Britain and France of the Suez Canal from Egypt in 1956, liability under the charter depended upon determination of whether "war" had been "declared" by Egypt.
In In Re Al Fin 1970 Chancery 160, the U.K. Patents Act provided for extension of a patent if the court was satisfied the patentee had suffered damages by reason of hostilities between Her Majesty and any foreign state. Under the facts presented, the question was whether the Korean conflict between 1950 and 1954 rose to the necessary level. Note the Foreign Office's careful limitations and the holding of the court.
In an era of globalization,
cross border trading and ownership is closer to the rule than the exception.
What happens when a conflict involves corporations with substantial ties to
multiple belligerents? One seminal analysis may be found in Lord Parker's
opinion in Daimler v Continental Tyre.
He pointed out that:
|I think that the analogy is to be found in control, an idea which, if not very familiar in law, is of capital importance and is very well understood in commerce and finance. The acts of a company's organs, its directors, managers, secretary, and so forth, functioning within the scope of their authority, are the company's acts and may invest it definitively with enemy character. It seems to me that similarly the character of those who can make and unmake those officers, dictate their conduct mediately or immediately, prescribe their duties and call them to account, may also be material in a question of the enemy character of the company. If not definite and conclusive, it must at least be prima facie relevant, as raising a presumption that those who are purporting to act in the name of the company are, in fact, under the control of those whom it is their interest to satisfy. Certainly I have found no authority to the contrary. Such a view reconciles the positions of natural and artificial persons in this regard, and the opposite view leads to the paradoxical result that the King's enemies, who chance during war to constitute the entire body of corporators in a company registered in England, thereby pass out of the range of legal vision, and, instead, the corporation, which in itself is incapable of loyalty, or enmity, or residence, or of anything but bare existence in contemplation of law and registration under some system of law, takes their place for almost the most important of all purposes, that of being classed among the King's friends or among his foes in time of war.|
Might it be useful to a government to declare war in order to obtain domestic powers? Consider the discussion in Korematsu of domestic internment by the United States of Japanese-American citizens in 1942. In the Burmah Oil Case Lord Reid discusses the effects of war on the domestic powers of the executive. Might it be useful from the government's viewpoint, to declare war in order to obtain those powers?
From the following
proclamation issued by President Harry Truman you may deduce certain legal
advantages obtained by the government of the United States from the existence of
have today issued a proclamation terminating the period of hostilities
of World War II, as of 12 o'clock noon today, December 31, 1946.
Under the law, a number of war and emergency statutes cease to be effective upon the issuance of this proclamation.... Most of the powers affected by the proclamation need no longer be exercised by the executive branch of the Government. ...
The proclamation terminates Government powers under some 20 statutes immediately upon its issuance. It terminates Government powers under some 33 others at a later date...
It should be noted that the proclamation does not terminate the state of emergency declared by President Roosevelt.... Nor does today's action have the effect of terminating the state of war itself.
Proclamation No. 2714, 12 Fed. Reg. 1 (1946).
Questions To Consider About The Legal Effects Of War
|1.5.1 What rights and duties are created by the recognition of a state of war? Should and do any of those obligations lie if the belligerent status is unrecognized?|
|1.5.2 What are the legal rights of enemy aliens? Does the "home" country have an interest in protecting those citizens? Should those rights apply to citizens of enemy parentage or naturalized enemy aliens?|
|1.5.3 How does war affect private business relationships? How does a business anticipate and plan for those possibilities?|
|1.5.4 How is the effect changed in this era of the global economy? To what state does the loyalty, if any, of a multinational corporation lie?|
|1.5.5 Consider Korematsu. What rules govern compulsory exclusion under the Geneva and Hague Conventions? Compare the protection they provide to the U.S. Constitution’s. Does the mass movement of populations constitute any type of international delict?|
|1.5.6 Can a nation engage in armed conflict without changes in its domestic law? Consider the example of the United States and compare the changes of World War Two with the domestic security law modifications (the "USAPATRIOT" Act) post 9/11.|
There are two underlying views on the legitimacy of use of armed force to settle international disputes. The restrictive approach is based on interpretation of the principles underlying Article 2(4) of the United Nations Charter which provides:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
Its proponents claim that section was written with the view of abolishing war. The qualified prohibition analysis is perhaps a more realistic view, in light of state activity since the Charter came into force. It is based on the plain meaning section of 2(4). Proponents argue that:
The Charter language only prohibits certain end results (for example, obtaining territory by force viz Iraq and Kuwait in 1990) and that use of force consistent with U.N. purposes is legal.
The protection of the Charter is afforded only to law-abiding states and that an international outlaw state has no legal recourse to the use of force against it.
Those propounding the broader find support in
Article 51 which states:
|Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.|
Consider then, General Assembly Resolution 2625, which states, in part, certain principles which the ICJ in Nicaragua v US, ¶191, found constitute customary international law:
General Assembly Resolution 2625 (XXV), referred to above. As already observed, the adoption by States of this text affords an indication of their opinio juris as to customary international law on the question. Alongside certain descriptions which may refer to aggression, this text includes others which refer only to less grave forms of the use of force. In particular, according to this resolution:
'Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States....
States have a duty to refrain from acts of reprisal involving the use of force....
Every State has the duty to refrain from any forcible action which deprives peoples referred to in the elaboration of the principle of equal rights and self-determination of that right to self-determination and freedom and independence.
Every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State.
Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.'
The two views spill over though, into application of Article 51 to the traditional right of nations to use armed force in self-defense.
Article 51 of the Charter continues the customary right of self-defense, at least until the Security Council has had time to act. The most commonly cited exposition of that right (self-defense is "confined to cases in which the necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.") is in a letter written in 1841 by Secretary of State Daniel Webster in The Caroline incident. The doctrine has its roots in the jus ad bellum tradition above discussed in Section 1.1 ("Fear with respect to a neighboring power is not a sufficient cause. For...self-defense to be lawful it must be necessary; and it is not necessary unless we are certain, not only regarding the power of our neighbor, but also regarding his intention; the degree of certainty which is required is that which is accepted in morals." Hugo Grotius, The Law of War and Peace, Chap. 22, V, 1. "That the possibility of being attacked confers the right to attack is abhorrent to every principle of equity. Human life exists under such conditions that complete security is never guaranteed to us." Ibid. Bk. II, Chap. 1, XVII.) It is considerably complicated by mutual defense treaties, and the question of their applicability. In a convention such as the NATO Treaty (German language version), an attack on one member is treated as an attack on all. The potential for unintended consequences is self-evident.
|...the Court observes that the United Nations Charter, ... by no means covers the whole area of the regulation of the use of force in international relations. On one essential point, this treaty itself refers to pre-existing customary international law; this reference to customary law is contained in the actual text of Article 51, which mentions the 'inherent right' (in the French text the 'droit naturel') of individual or collective self-defence, which 'nothing in the present Charter shall impair' and which applies in the event of an armed attack. The Court therefore finds that Article 51 of the Charter is only meaningful on the basis that there is a 'natural' or 'inherent' right of self-defence, and it is hard to see how this can be other than of a customary nature, even if its present content has been confirmed and influenced by the Charter.|
Nicaragua v US ¶176.
The argument has been made that the Caroline doctrine is obsolete and that nations threatened by terrorist use of weapons of mass destruction must look to a more robust policy of preemption. See, e.g. graduation speech by President George W. Bush at West Point on 1 June, 2002. But See, President Barack Obama's Nobel Peace Prize acceptance speech which states, inter alia:
|I believe that all nations -- strong and weak alike -- must adhere to standards that govern the use of force. I -- like any head of state -- reserve the right to act unilaterally if necessary to defend my nation. Nevertheless, I am convinced that adhering to standards, international standards, strengthens those who do, and isolates and weakens those who don't."|
Dr. Barry Schneider of the U.S. Air Force Counterproliferation Center identifies some of the inherent dangers of the preemption doctrine:
|Preemptive attack, as a last resort, in an extremely dangerous and unique situation, makes sense. In general, however, preemptive counter-proliferation actions should be considered only in the most extreme cases, where all other options appear to be ineffective, and where the conditions favor success|
Barry R. Schneider, "Radical Responses to Radical Regimes: Evaluating Preemptive Counter-proliferation", Washington, DC: National Defense University, Institute for National Strategic Studies, McNair Paper #41, May 1995.
For a timely discussion of specific application of this doctrine see, Charles Knight, First Strike Guidelines: The Case of Iraq, Project on Defense Alternatives Briefing Paper #25, 10 March, 2003.
Article 52 of the United Nations Charter provides, in part, that:
|Nothing in the ... Charter precludes the existence of regional arrangements ... for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided [they] are consistent with the Purposes and Principles of the United Nations.|
Taken together with Articles Articles 50-51, there are numerous ties binding states which are members of international security arrangements to commit armed forces for the maintenance of international peace and security. That proposition, which is so simple to state, is fraught with difficulties demonstrated by the various coalition building problems demonstrated in the Korean Conflict, the Persian Gulf War and the 1999 intervention in Kosevo.
The humanitarian intervention doctrine dates at least to the middle of the 19th century when French forces landed in Lebanon. It has been the justification for the use of force in a number of civil conflicts since that date, and is still viewed by many of the former non-colonial powers as unjustified interference in a nation's internal affairs. The opposition by the People's Republic of China to NATO's use of force in Kosevo in 1999 may be, at least in part, attributable to that history. A good example of use of that doctrine with colonialist overtones may be found in the humanitarian intervention of the United States in Haiti in 1915.
The doctrine is certainly still controversial, not least because there are no established standards governing its application. The Secretary General of the United Nations has suggested some guidelines:
|First, like all other basic principles, the principle of protection of human rights cannot be invoked in a particular situation and disregarded in a similar one. To apply it selectively is to debase it. Governments can, and do, expose themselves to charges of deliberate bias; the United Nations cannot. Second, any international action for protecting human rights must be based on a decision taken in accordance with the Charter of the United Nations. It must not be a unilateral act. Third, and relatedly, the consideration of proportionality is of the utmost importance in this respect. Should the scale or manner of international action be out of proportion to the wrong that is reported to have been committed, it is bound to evoke a vehement reaction, which in the long run, would jeopardize the very rights that were sought to be defended.|
Secretary General's Report on the Work of the United Nations, U.N. Doc. A/46/1 at 10-11 (Sept. 1991).
Others take a more expansive view:
|The argument against a right of humanitarian intervention is based primarily on an absolute interpretation of the article 2(4) prohibition on the use of force and the fear of abusive invocation of the doctrine. The reality of current state practice, however, has rendered the absolute prohibition of the Charter meaningless. Thus, there exists a compelling need for a contemporary and realistic interpretation of article 2(4) based on state practice that recognizes an exception to the Charter prohibition when force is required to prevent mass slaughter.|
Daniel Wolf, Humanitarian Intervention, IX Mich.Y.B. Int'l Leg. Stud. 333, 339-40 (1998).
Questions To Consider About Legitimate Use Of Armed Force
|1.6.1 Has the law of war on use of armed force changed since the judgment of the Nuremberg Tribunal following World War II? If so, how?|
|1.6.2 What legal principles distinguish internal conflicts? How, in a principled fashion, can you distinguish the conflict between Muslim Albanians and Orthodox Serbs in Kosevo, from that between Muslim Chechens and Orthodox Russians in Chechnya? Would a U.N. Security Council finding of a threat to international peace and security in itself make a principled difference? Is there a realpolitik issue involved?|
|1.6.3 List five factors which justify armed intervention by one nation in the internal conflict of another.|
|1.6.4 If your standards have been satisfied to permit a nation to intervene in an internal conflict between groups in another state, why isn't it obligated to do so?|
|1.6.5 In late Spring, 1967 Egypt blockaded an Israeli port. Israel claimed that blockade was an act of war. It also claimed Egypt was preparing an aerial attack on Israeli forces. Israel launched a preemptive attack on Egyptian airfields claiming the right of anticipatory self-defense. Was the attack justified? Read the NATO Treaty. If your answer to the prior question is yes, if Israel had been a member of NATO, would the United States have been obligated to participate in the attack?|
|1.6.6 Examine these incidents of humanitarian intervention: India's invasion of East Pakistan (Bangladesh) in 1971, Vietnam's invasion of Cambodia in 1978, Tanzania's invasion of Uganda in 1979, and NATO's recent intervention in various territories of the former Yugoslavia. In each the invading party claimed its actions were necessary to halt genocide. Have they given rise to any new legal principle mandating the use of armed force to prevent genocide? If so, how is the determination made of who must participate and when and how they must act?|
|1.6.7 Suppose that a fascist government came to power in country X, which has a large Jewish population, and that it begins government sponsored violent persecution of its Jewish citizens. At a point in time the German intelligence services learn that country X is planning to create concentration camps to impose a "final solution," on its Jewish citizens. Given its past history and recognized historical obligations would Germany be justified in taking unilateral military action to intervene? On what legal basis?|
|1.6.8 According to G.A. resolution 2625 every state "has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force." Was the Taliban in violation of G.A. 2625 in September, 2001? Articulate the case for and against the position.|
1.6.9 In a
graduation speech at West Point on 1 June, 2002, President George W.
Bush said "our security will require all Americans to be forward-looking
and resolute, to be ready for preemptive action when necessary to defend
our liberty and to defend our lives..." His speech generated considerable
controversy. Compare Mr. Bush's statement with the position of the
United States articulated in The Caroline
Case. Is there a difference? Is any
According to one author:
The President, in unfurling his June 2002 doctrine of preemption at West Point, was disingenuous in suggesting that proof of an emerging threat would be needed to trigger action. No one in the inner circle believed that. "Making a case for war" fell under public relations, under marketing, not R&D..."Justification, legitimacy," Cheney would say, were a part of Old World thinking.
Ron Suskind, The One Per Cent Doctrine, at 214. Simon & Schuster (New York, 2006)
|1.6.10 If the "preemptive defense" policy is justified is it applicable by other nations? Consider its application in the Middle East or the Indian sub-continent. Discuss your analysis.|
The term "preventive war," has been used before.
"Both [German Field Marshall Colmar von der Goltz and Chancellor Bethmann Hollweg meeting in 1911] spoke reverently of Bismark...characterizing Bismark's nineteenth-century wars with Austria and France as 'preventive wars', and suggesting that a new round was needed 'for the benefit of the fatherland'." Geoffrey Wawro, Warfare And Society In Europe 1792-1914 at p. 188, Routledge (London, 2000).
Were the Prussian Wars against Austria and France justified under international law as it existed in 1866 and 1870? Would they be justified under the preemption doctrine?