Declaration of war

United States President Franklin D. Roosevelt signs a declaration of war against Nazi Germany on December 11, 1941.

A declaration of war (aka DOW, DoW) is a formal performative speech act or signing of a document by an authorized party of a government in order to initiate a state of war between two or more nations. The legality of who can declare war varies between nations and forms of government. In many nations power is given to the head of state or sovereign. In other cases something short of a full declaration of war, such as a letter of marque or a covert operation, may authorise warlike acts by privateers or mercenaries. The official international protocol for declaring war was defined in the Hague Convention (III) of 1907 on the Opening of Hostilities.

It has been noted that "developments in international law since 1945, notably the United Nations (UN) Charter, including its prohibition on the threat or use of force in international relations, may well have made the declaration of war redundant as a formal international legal instrument."[1] In addition to this, non-state or terrorist organisations may claim to or be described as "declaring war" when engaging in violent acts.[2][3] These declarations may have no legal standing in themselves, but may still act as a call to arms for supporters of these organisations.

Contents

Definitions

Theoretical perspectives

A definition of the three ways of thinking about a declaration of war were developed by Saikrishna Prakash.[4] He argues that a declaration of war can be seen from three perspectives:

Types of declarations

An alternative typology based upon the form the declaration is formulated according to 1) the degree to which the state and condition of war exists, 2) the degree of justification, 3) the degree of ceremony of the speech act, and 4) the degree of perfection of the speech act:

Degree of existence of the war
Degree of justification of the war
Degree of ceremony with which the speech act was made
Degree of perfection with which the speech act was made

History

The practice of declaring war has a long history. The ancient Sumerian Epic of Gilgamesh gives an account of it,[6] as does the Old Testament.[7][8]

In modern public international law, a declaration of war entails the recognition between countries of a state of hostilities between these countries, and such declaration acted to regulate the conduct between the military engagements between the forces of the respective countries. The primary multilateral treaties governing such declarations are the Hague Conventions.

The League of Nations formed in 1919 in the wake of the First World War, and the General Treaty for the Renunciation of War of 1928 signed in Paris, France, demonstrated that world powers were seriously seeking a means to prevent the carnage of another world war. Nevertheless, these powers were unable to stop the outbreak of the Second World War and, the United Nations (UN) was consequently established following that war in a renewed attempt to prevent international aggression through declarations of war.

United Nations and war

In an effort to force nations to resolve issues without warfare, framers of the United Nations Charter attempted to commit member nations to using warfare only under limited circumstances, particularly for defensive purposes.

The UN became a war combatant itself after North Korea invaded South Korea on June 25, 1950 (see Korean War). The UN Security Council condemned the North Korean action by a 9-0 resolution (with the Soviet Union absent) and called upon its member nations to come to the aid of South Korea. The United States and 15 other nations formed a "UN force" to pursue this action. In a press conference on June 29, 1950, U.S. President Harry S. Truman characterized these hostilities as not being a "war", but a "police action"[9].

The United Nations has issued Security Council Resolutions that declared some wars to be legal actions under international law, most notably Resolution 678, authorizing war with Iraq in 1991. The UN Resolutions declare war by authorising the use of "force" or "all means necessary"[10].

Denigration of formal declarations of war

In Classical times, Thucydides condemed the Thebans, allies of Sparta, for launching a surprise attack without a declaration of war against Plataea, Athens' ally - an event which touched off the Peloponnesian War.[11]

The utility of formal declarations of war has always been questioned, either as sentimental left overs from an age of chivalry or as imprudent warnings to the enemy. For example, writing in 1737, Cornelius van Bynkershoek judged that "nations and princes endowed with some pride are not generally willing to wage war without a previous declaration, for they wish by an open attack to render victory more honourable and glorious."[12] Writing in 1880, William Edward Hall judged that "any sort of previous declaration therefore is an empty formality unless the enemy must be given time and opportunity to put himself in a state of defence, and it is needless to say that no one asserts such a quixotism to be obligatory."[13]

In the United States, Congress which makes the rules for the military has the power under the Constitution to "declare War," however there is no prescribed legal format for what a War declaration will look like in the United States Constitution or by law. Declarations have the force of law and are intended to be executed by a Commander in Chief when called into actual service. The last time United States passed a bill with the title "Declaration of War" was in 1942, against Romania. Since then, the United States has used the term "Authorization to use Military Force" as in the case against Iraq in 2003. Many times, such as the US Invasion of Haiti in 1993, decisions for military engagements were made by US presidents, without formal approval by Congress, based on UN Security Council resolutions that did not declare UN or its members at war. This has been seen also as a subterfuge to allow the United States to dispense with the international laws of war, for example by declaring hostages as criminals rather than as prisoners of war (e.g., Manuel Noriega[14]).

Agreed Procedure for The Opening of Hostilities

The Hague Convention (III) in 1907 called "CONVENTION RELATIVE TO THE OPENING OF HOSTILITIES"[15] gives the international actions a country should perform when opening hostilities. The first two Articles say:-

Article 1

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.

Article 2

The existence of a state of war must be notified to the neutral Powers without delay, and shall not take effect in regard to them until after the receipt of a notification, which may, however, be given by telegraph. Neutral Powers, nevertheless, cannot rely on the absence of notification if it is clearly established that they were in fact aware of the existence of a state of war.

See also

References

  1. ↑ Waging war: Parliament’s role and responsibility House of Lords Select Committee on the Constitution; 27-07-06; Accessed 21-04-08
  2. ↑ Basque raid 'declaration of war' BBC News; 06-10-07; Accessed 21-04-08
  3. ↑ Iraq: Sadr speaks on ”open war” as al Qaeda to launch new campaign Al-Bawaba News; 20-04-08; Accessed 21-04-08
  4. ↑ Unleashing the Dogs of War: What the Constitution Means by 'Declare War' Prakash, Saikrishna; 2007; Cornell Law Review, Vol. 93, October 2007; Subscription Required
  5. ↑ Scholarship on the "Declare War" Power 22-01-08; Accessed 21-04-08
  6. ↑ Brien Hallett, The Lost Art of Declaring War, University of Illinois Press, 1998, ISBN 0-252-06726-6, pp.65f.
  7. ↑ Deut. 20:10-12, Judg. 11:1-32.
  8. ↑ Brien Hallett, The Lost Art of Declaring War, University of Illinois Press, 1998, ISBN 0-252-06726-6, pp.66f.
  9. ↑ "The President's News Conference". 1950-06-29. http://teachingamericanhistory.org/library/index.asp?document=594. Retrieved 2007-07-03. 
  10. ↑ http://www.fas.org/man/crs/RS21323.pdf The United Nations Security Council – Its Role in the Iraq Crisis: A Brief Overview
  11. ↑ Thucydides. History of the Peloponnesian War, Book II.
  12. ↑ Bynkershoek, Cornelius van. 1930. Quæstionum Juris Publici Liber Duo (1737). Trans. Tenney Frank. The Classics of International Law No. 14 (2). Publications of the Carnegie Endowment for International Peace. Oxford at the Clarendon Press. (I, ii, 8)
  13. ↑ Hall, William Edward. 1924. A Treatise on International Law. 8th ed. by A. Pearce Higgins. London: Humphrey Milford: Oxford University Press. (p. 444)
  14. ↑ http://books.google.com/books?id=sYA4zY1ke6UC&lpg=PA45&ots=L8cPcudx8R&pg=PA45#v=onepage&q=&f=false
  15. ↑ http://avalon.law.yale.edu/20th_century/hague03.asp

External links