Does anybody even bother to formally declare war anymore? I know the U.S. has not done so since WWII. Has anyone done it since then? Maybe England/Argentina over the Faulkland Islands?
I second this question.
That is truly a debateable statement. I’m not trying to be argumentative here, but the Constitution does not state what form the declaration should take. Therefore, you can legitimately argue that the Gulf of Tonkin Resolution was in fact a declaration of war on North Vietnam and that the Iraq resolution was also a declaration of war. The refusal to refer to Vietnam (and to a lesser extent Korea) as a war has more to do with politics than anything else, because the politicians of the time were loathe to call it what it really was.
The issue of what constitutes a “declaration of war” is no clearer when considering other countries. On December 15, 1989, the Noriega-dominated Panamanian National Assembly declared that Panama was “in a state of war” with the United States. Does that count?
I won’t cite it as a fact, but I seem to recall reading that the Gulf War in 1991 was the first formal declaration of war since World War II.
It seems this question hinges on what constitutes a “declaration of war.”
Some people see an authorization of force and a declaration of war as different things, some see them as the same thing in the modern era.
I see the authorization of force as being a different animal than a declaration of war, because an authorization, as has been argued by the current administration, does not necessarily trigger the protections of the Geneva Conventions or confer POW status on those captured in battle. The US did not declare war on Iraq in 1991…
Not by the standard of US law, it wasn’t. A formal declaration of war requires specific language in the resolution passed by Congress. For example:
That hasn’t happened since WWII.
Now, as Airman Doors points out, it’s certainly possible to decide that certain subsequent resolutions constitute a “declaration of war” under some other definition, but nobody in The Gummint would agree with such a definition.
Doh! Forgot the link for that excerpt:
http://www.law.ou.edu/ushistory/germwar.shtml
And here’s another one just for kicks:
I do not believe that the Administration has in fact argued this particular point, and I’d ask you for a cite if you believe it has. The GC has nothing whatsoever to do with whether or not war is declared or not. The simple existence of armed hostilities is the key factor.
Formal declarations of war are just simply not as important as they once were under customary international law. (Customary international law is what is generally considered acceptable practices in the international arena. It exists and is supposedly binding on all states without countries having to sign a treaty.) Over the 20th century, there was an explosion of treaty- and convention-based law that has subsumed various customs. To use an earlier example, there no longer needs to be a formal notice of war in order for the world to recognize the applicability of the laws of war.
Since World War II and the establishment of the United Nations, the prevailing international current is to describe most wars as defensive in nature. Modern media of course plays a part in this: why call it a war when “Operation: Liberty Rulez!” will do?
There is one key reason in domestic law why the United States has not declared war since WW2. Under a declaration of war, the President gains rather serious amounts of power that he does not have should he conduct miltiary operations under an authorization for the use of military force. For example, under an emergency situation, a President may deploy up to 1 million members of the Reserves for a period of less than 2 years, if my memory serves. If war is declared, he may deploy unlimited numbers of Reserves for as long as he wishes. The President also gains a number of controls over the economy, trade, and other matters. These legal incidents are viewed as probably not being appropriate to the limited wars the US has been involved with since 1945 (much to Truman’s regret when he tried to nationalize steel mills during the Korean War).
There’s also a popular notion that authorizations for military force are a new invention, but that is wrong. Congress passed its first military authorization around 1798, if memory serves, in relation to French privateers, or something like that.
The War on Christmas.
No, what my admittedly cloudy 15 year old memory was that the Gulf War was the first declared war since WWII under the terms of the UN Charter.
There is no such distinction. The method of declaring war is left up to Congress, and that’s it. There is no requirement for a certain type of statement. They could pass a resolution saying that Kim Jong-Il is a poopyhead and force is therefore authorized so we can go into his office and slap him silly and that would be a declaration of war if war was what it took to achieve that goal.
Did you read this? I don’t see the words “declaration of war” in there at all. The memo uses other arguments, which are discussed right there in the memo. Again, if you have evidence that shows that the Geneva Conventions were ignored because we did not formally declare war, perhaps you could point it out to me.
The Gulf War was not a declared war by the Coalition/UN side. It was authorized by the UN Security Council, but that is not the same. I do not know if Iraq declared war on the US/UN/Coalition.
You’re nitpicking. Bush clearly made every attempt to avoid applying the Geneva Conventions. If there had been a formal declaration of war, he would not have had that option.
Happy to be corrected, but from my vague recollection of my public international law class from 15 years ago WW2 was the last time anyone declared war.
Fine. Provide a cite that a formal declaration of war has anything to do with the Geneva Conventions.
I will provide my own citation, from the International Committee of the Red Cross, which clearly lays out the history of the GC and shows beyond any doubt that he treaty applies equally to declared and undeclared wars:
First of all, who was there to declare war on? A terrorist organization is not a nation-state. Second, Congress authorized the action, which is a declaration of war ipso facto.
Third, the Geneva Conventions refer to the status of combatants regardless of the status of the combat. It has nothing to do with the nature of the war, rather with the nature and behavior of the fighting. The North Vietnamese tried to fly that excuse and it didn’t wash then, why do you think it has gotten any better since?
The reason why the “enemy combatant” status was used was because they were not fighting for an established government and did not have the same status as a sanctioned army. I can’t say that I agreed with the reasoning, but it’s not true that Bush would have been bound to the GC with a declaration of war. He already had one, and he already was bound by the GCs. He chose a nuanced interpretation of the GCs and it took time for the Supreme Court to rule on that interpretation.