Declaration of war

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

A declaration of war is a formal act by which one state goes to war against another. The declaration is a performative speech act (or the signing of a document) by an authorized party of a national government, in order to create a state of war between two or more states.

State (polity) Organised community living under a system of government; either a sovereign state, constituent state, or federated state

A state is a political organization with a centralized government that exerts authority within a certain geographical territory. There is not a single, undisputed, definition of what constitutes a state. A widely-used definition is a state being a polity that, within a given territory, maintains a monopoly on the use of force.

War Organised and prolonged violent conflict between states

War is a state of armed conflict between states, governments, societies and informal paramilitary groups, such as mercenaries, insurgents and militias. It is generally characterized by extreme violence, aggression, destruction, and mortality, using regular or irregular military forces. Warfare refers to the common activities and characteristics of types of war, or of wars in general. Total war is warfare that is not restricted to purely legitimate military targets, and can result in massive civilian or other non-combatant suffering and casualties.

A speech act in linguistics and the philosophy of language is something expressed by an individual that not only presents information, but performs an action as well. For example, the phrase "I would like the mashed potatoes, could you please pass them to me?" is considered a speech act as it expresses the speaker's desire to acquire the mashed potatoes, as well as presenting a request that someone pass the potatoes to them. According to Kent Bach, "almost any speech act is really the performance of several acts at once, distinguished by different aspects of the speaker's intention: there is the act of saying something, what one does in saying it, such as requesting or promising, and how one is trying to affect one's audience". The contemporary use of the term goes back to J. L. Austin's development of performative utterances and his theory of locutionary, illocutionary, and perlocutionary acts. Speech acts serve their function once they are said or communicated. These are commonly taken to include acts such as apologizing, promising, ordering, answering, requesting, complaining, warning, inviting, refusing, and congratulating.

Contents

The legality of who is competent to declare war varies between nations and forms of government. In many nations, that 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 war-like 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.

A head of state is the public persona who officially represents the national unity and legitimacy of a sovereign state. Depending on the country's form of government and separation of powers, the head of state may be a ceremonial figurehead or concurrently the head of government. In a parliamentary system the head of state is the de jure leader of the nation, and there is a separate de facto leader, often with the title of prime minister. In contrast, a semi-presidential system has both heads of state and government as the leaders de facto of the nation.

A monarch is a sovereign head of state in a monarchy. A monarch may exercise the highest authority and power in the state, or others may wield that power on behalf of the monarch. Typically a monarch either personally inherits the lawful right to exercise the state's sovereign rights or is selected by an established process from a family or cohort eligible to provide the nation's monarch. Alternatively, an individual may become monarch by conquest, acclamation or a combination of means. A monarch usually reigns for life or until abdication.

Letter of marque governmental authorization of privateering

A letter of marque and reprisal was a government license in the Age of Sail that authorized a private person, known as a privateer or corsair, to attack and capture vessels of a nation at war with the issuer. Once captured, the privateer could then bring the case of that prize before their own admiralty court for condemnation and transfer of ownership to the privateer. A letter of marque and reprisal would include permission to cross an international border to effect a reprisal and was authorized by an issuing jurisdiction to conduct reprisal operations outside its borders.

Since 1945, developments in international law such as the United Nations Charter, which prohibits both the threat and the use of force in international conflicts, have made declarations of war largely obsolete in international relations. [1] The UN Security Council, under powers granted in articles 24 and 25, and Chapter VII of the Charter, may authorize collective action to maintain or enforce international peace and security. Article 51 of the United Nations (UN) Charter also states that: "Nothing in the present Charter shall impair the inherent right to individual or collective self-defence if an armed attack occurs against a state." [2]

Collective action action taken together by a group of people whose goal is to enhance their status and achieve a common objective

Collective action refers to action taken together by a group of people whose goal is to enhance their status and achieve a common objective. It is a term that has formulations and theories in many areas of the social sciences including psychology, sociology, anthropology, political science and economics.

Few nations have formally declared war upon another since then. In addition to this, non-state or terrorist organizations may claim to or be described as "declaring war" when engaging in violent acts. [3] [4] These declarations may have no legal standing in themselves, but they may still act as a call to arms for supporters of these organizations.

Violent non-state actor individuals and groups that are wholly or partly independent of state governments and which threaten or use violence to achieve their goals

In international relations violent non-state actors (VNSA) are individuals and groups that are wholly or partly independent of state governments and which threaten or use violence to achieve their goals.

Definitions

Theoretical perspectives

Brazilian President Venceslau Bras declares war on the Central Powers on October 26, 1917. Venceslau Bras declara guerra 1917.jpg
Brazilian President Venceslau Brás declares war on the Central Powers on October 26, 1917.

A definition of the three ways of thinking about a declaration of war was developed by Saikrishna Prakash. [5] He argues that a declaration of war can be seen from three perspectives:

Types of declarations

An alternative typology based upon the form of the declaration is formulated by Brien Hallett [7] 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

Adolf Hitler announcing the German declaration of war on the United States on 11 December 1941. Bundesarchiv Bild 183-1987-0703-507, Berlin, Reichstagssitzung, Rede Adolf Hitler.jpg
Adolf Hitler announcing the German declaration of war on the United States on 11 December 1941.

The practice of declaring war has a long history. The ancient Sumerian Epic of Gilgamesh gives an account of it, [8] as does the Old Testament. [9] [10]

However, the practice of declaring war was not always strictly followed. In his study Hostilities without Declaration of War (1883), the British scholar John Frederick Maurice showed that between 1700 and 1870 war was declared in only 10 cases, while in another 107 cases war was waged without such declaration (these figures include only wars waged in Europe and between European states and the United States, not including colonial wars in Africa and Asia).

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 has 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, so the United Nations (UN) was established following that war in a renewed attempt to prevent international aggression through declarations of war.

Denigration of formal declarations of war before WWII

In classical times, Thucydides condemned the Thebans, allies of Sparta, for launching a surprise attack without a declaration of war against Plataea, Athens' ally – an event that began the Peloponnesian War. [11]

The utility of formal declarations of war has always been questioned, either as sentimental remnants of a long-gone 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]

Agreed Procedure for the Opening of Hostilities according to the Hague Convention

The Hague Convention (III) of 1907 called "Convention Relative to the Opening of Hostilities" [14] 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. [15]

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. [16]

Formal declarations of war during World War I

Formal declarations of war during World War II

After World War II

In 1989, Panama declared itself to be in a state of war with the United States. [17] On 13 May 1998, at the outbreak of the Eritrean–Ethiopian War, Ethiopia, in what Eritrean radio described as a "total war" policy, mobilized its forces for a full assault against Eritrea. [18] The Claims Commission found that this was in essence an affirmation of the existence of a state of war between belligerents, not a declaration of war, and that Ethiopia also notified the United Nations Security Council, as required under Article 51 of the UN Charter. [19]

In December 2005, the government of Chad declared that a state of war existed with Sudan, after Sudan hosted Chadian rebel groups that were behind fatal cross border raids. [20]

In 2008, after armed clashes broke out during the Djiboutian–Eritrean border conflict, Djibouti's President Guelleh, when asked if his country was at war with Eritrea, replied with "absolutely". [21]

On 11 April 2012, Sudan declared war on South Sudan after weeks of border clashes. [22]

Declared wars since 1945

Declarations of war, while uncommon in the traditional sense, have mainly been limited to the conflict areas of the Western Asia and East Africa since 1945. Additionally, some small states have unilaterally declared war on major world powers such as the United States, United Kingdom, or Russia when faced with a hostile invasion and/or occupation.

This is a list of declarations of war (or the existence of war) by one sovereign state against another since the end of World War II in 1945. Only declarations that occurred in the context of a direct military conflict are included.

War(s)DateTitledBelligerentsEndedReferences
Declaring partyOpponent
Arab–Israeli War (1948–49)
Suez Crisis (1956)
Six-Day War (1967)
War of Attrition (1967–70)
Yom Kippur War (1973)
15 May 1948declaration of war Flag of Egypt (1922-1958).svg Egypt
Flag of Jordan.svg  Jordan
Flag of Syria (1932-1958; 1961-1963).svg Syria
Flag of Iraq (1924-1959).svg Iraq
Flag of Lebanon.svg  Lebanon
Flag of Israel.svg  Israel Egypt: 26 March 1979
Jordan: 26 October 1994
Syria: still at war
Iraq: still at war
Lebanon: still at war
[23]
Ogaden War 13 July 1977declaration of warFlag of Somalia.svg  Somalia Flag of Ethiopia (1975-1987).svg Ethiopia 15 March 1978
Uganda–Tanzania War 2 November 1978declaration of warFlag of Tanzania.svg  Tanzania Flag of Uganda.svg  Uganda 3 June 1979 [24]
Iran–Iraq War 22 September 1980declaration of war Flag of Iraq (1963-1991); Flag of Syria (1963-1972).svg Iraq Flag of Iran.svg  Iran 20 July 1988 [25]
Falklands War 11 May 1982declaration of war (declaring the existence of a zone of war.)Flag of Argentina.svg  Argentina Flag of the United Kingdom.svg  United Kingdom 20 June 1982 [26]
United States invasion of Panama 15 December 1989existence of a state of warFlag of Panama.svg  Panama Flag of the United States.svg  United States 31 January 1990 [27]
Eritrean–Ethiopian War 14 May 1998existence of a state of warFlag of Ethiopia (1996-2009).svg  Ethiopia Flag of Eritrea.svg  Eritrea 12 December 2000 [18]
Chadian Civil War (2005–10) 23 December 2005existence of a state of warFlag of Chad.svg  Chad Flag of Sudan.svg  Sudan 15 January 2010 [28]
Djiboutian–Eritrean border conflict 13 June 2008existence of a state of warFlag of Djibouti.svg  Djibouti Flag of Eritrea.svg  Eritrea 6 June 2010 [21]
Russo-Georgian War 9 August 2008declaration of war (declaring the existence of a state of war.)Flag of Georgia.svg  Georgia Flag of Russia.svg  Russia16 August 2008 [29]
Heglig Crisis 11 April 2012existence of a state of warFlag of Sudan.svg  Sudan Flag of South Sudan.svg  South Sudan 26 May 2012 [30]
Sinai insurgency 1 July 2015existence of a state of warFlag of Egypt.svg  Egypt AQMI Flag asymmetric.svg Islamic State still at war [31]

Legality of declarations of war since 1945

The United Nations Charter is the foundation of modern international law. [32] The UN Charter is a treaty ratified by members of the UN, which are therefore legally bound by its terms. Article 2(4) of the UN Charter generally bans the use of force by states except when carefully circumscribed conditions are met, stating:

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. [33]

This rule was "enshrined in the United Nations Charter in 1945 for a good reason: to prevent states from using force as they felt so inclined", said Louise Doswald-Beck, Secretary-General International Commission of Jurists. [34]

Therefore, in the absence of an armed attack against a country or its allies, any legal use of force, or any legal threat of the use of force, has to be supported by a United Nations Security Council resolution authorizing member states to use force.

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 combatant itself after North Korea invaded South Korea on 25 June 1950, which begun the 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 29 June 1950, U.S. President Harry S. Truman characterized these hostilities as not being a "war" but a "police action". [35]

The United Nations has issued Security Council Resolutions that declared some wars to be legal actions under international law, most notably Resolution 678, authorizing the 1991 Gulf War which was triggered by Iraq's invasion of Kuwait. UN Resolutions authorise the use of "force" or "all necessary means". [36] [37]

Requirements by country

Commonwealth realms

Throughout the Commonwealth realms (the UK, Australia, Canada, et al.) the formal right to declare war rests with the monarch, currently Elizabeth II, as part of the royal prerogative and exercised by the Prime Minister (for example in the UK) or that realm's written constitution. In the United Kingdom parliamentary approval is often sought to deploy combat forces overseas, for example in the Iraq War and airstrikes on Daesh (ISIL), but this is not a legal requirement.

Finland

According to article 93 of the Finnish constitution, the President of Finland may declare war, or declare peace, with permission from the Parliament of Finland. [38]

France

According to Article 35 of the French constitution, the French Parliament has the authority to declare war. [39]

Germany

Article 115a says that unless attacked by an opposing military force, Germany must vote a two-thirds majority vote in the Bundestag if the federal republic is under the threat of war. [40]

Ireland

Article 28.3.1° of the Constitution of Ireland states that "war shall not be declared and the State shall not participate in any war save with the assent of Dáil Éireann." Ireland has taken a policy of non-alignment (what many confuse with neutrality see: Irish Neutrality) in military terms and is thus not a member of NATO.

Italy

According to the 11° article of the Italian Constitution, Italy rejects war as an instrument of aggression. [41] Parliament has the power to declare war if it is it necessary to create an order that ensures peace and justice among Nations; [42] the most reliable authors exclude that among the circumstances in which it can be declared the state of war under Article 78 of the Constitution may be included also the state of internal civil war. [43]

Japan

According to Article 9 of the Japanese Constitution, war is unconstitutional. This article within the Constitution of Japan was intended to prevent the country from being needlessly aggressive in multinational affairs after World War II.

Mexico

According to Article 89 § VIII of the Mexican Constitution the President may declare war in the name of the United Mexican States after the correspondent law is enacted by the Congress of the Union. [44]

Spain

According to the Spanish constitution of 1978, Art. 63, the King, with prior authorization by the Parliament, has the power to declare war and make peace.

Sweden

According to 2010:1408 15 kap. 14 § entitled "Krigsförklaring" (declaration of war) the Swedish cabinet (regeringen) may not declare Sweden to be at war without the parliaments (riksdagen) consent unless Sweden is first attacked. [45]

United States

In the United States, Congress, which makes the rules for the military, has the power under the constitution to "declare war". However neither the U.S. Constitution nor any Act of Congress stipulate what format a declaration of war must take. War declarations have the force of law and are intended to be executed by the President as "commander in chief" of the armed forces. The last time Congress passed joint resolutions saying that a "state of war" existed was on June 5, 1942, when the U.S. declared war on Bulgaria, Hungary, and Romania. [46] Since then, the US has used the term "authorization to use military force", as in the case against Iraq in 2003.

Sometimes decisions for military engagements were made by US presidents, without formal approval by Congress, based on UN Security Council resolutions that do not expressly declare the UN or its members to be at war. Part of the justification for the United States invasion of Panama was to capture Manuel Noriega (as a prisoner of war) [47] because he was declared a criminal rather than a belligerent.[ citation needed ]

In response to the September 11 attacks, the United States Congress passed the joint resolution Authorization for Use of Military Force Against Terrorists on September 14, 2001, which authorized the US President to fight the War on Terror. [48]

See also

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References

  1. "Waging war: Parliament's role and responsibility" (PDF). House of Lords. 27 July 2006. Retrieved 21 April 2008. 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 (unlawful recourse to force does not sit happily with an idea of legal equality).
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  4. Iraq: Sadr speaks on "open war" as al-Qaeda to launch new campaign Al-Bawaba News; 20-04-08; Accessed 21-04-08
  5. Unleashing the Dogs of War: What the Constitution Means by 'Declare War' Prakash, Saikrishna; 2007; Cornell Law Review, Vol. 93, Iss. 1, October 2007
  6. Scholarship on the "Declare War" Power 22-01-08; Accessed 21-04-08
  7. Brien Hallett, Declaring War, Cambridge University Press, 2012, ISBN   978-1-107-60857-3, pp 104-8
  8. Brien Hallett, The Lost Art of Declaring War, University of Illinois Press, 1998, ISBN   0-252-06726-6, pp. 65f.
  9. Deut. 20:10–12, Judg. 11:1–32.
  10. Brien Hallett, The Lost Art of Declaring War, University of Illinois Press, 1998, ISBN   0-252-06726-6, pp. 66f.
  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)
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  21. 1 2 "France backing Djibouti in 'war'". BBC News. 13 June 2008.
  22. "Sudan Vision Daily". Archived from the original on April 16, 2012. Retrieved March 27, 2015.
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  25. Robert Cowley (1996). "Iran-Iraq War". History.com.
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  28. "Call to ease Chad-Sudan tension". BBC News. 25 December 2005.
  29. Peter Walker (9 August 2008). "Georgia declares 'state of war' over South Ossetia". The Guardian.
  30. Scott Baldauf (19 April 2012). "Sudan declares war on South Sudan". Christian Science Monitor.
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