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I’m afraid I don’t see what your difficulty is. Internatlional law governs relations between states. Among other things, it prescribes the circumstances in which recourse to force is permitted. A war waged outside those circumstances is illegal.
Why are you puzzled?
I just have trouble w/ such a concept for reasons that will bring this out of GQ.
What is the origin of that phrase? When was it 1st used? And under international law when can you legally 1st strike?
The concept dates to the creation of the UN Charter, which says in Article 2:
Presumably it was first used in the next war after that where some country attacked another.
Back in the days of yore, countries would issue a formal declaration of war - or a formal breaking off of diplomatic relations, which was considered to be the same thing. This declaration would normally be physically handed to the representative of the opposing country, usually the ambassador. Fighting could commence at any time after that. This made sense when it might take days, weeks, or months to put an army in the field.
The core controversy behind the Japanese “sneak” attack at Pearl Harbor is their failure to convey this intent to the U.S. ahead of time.
In hindsight, the boiled down version is that the Japanese envoys in Washington were to give a 14-point message to Secretary of State Cordell Hull at 1 pm, Sunday, Dec. 7, 1941 Washington time. The 14th point would be the breaking off of relations. The attack would be launched at 1:20 pm, Washington time. All fair and legal.
But then everything went sitcom wrong. The low-level clerk decoders in the Japanese embassy, who knew nothing of the importance of the message, quit work early on the previous day to enjoy a Saturday night out. Decoding was a slow, complicated process on a lengthy document, and they just hasn’t gotten around to finishing. When they started up again on Sunday, there wasn’t time to complete everything before 1 pm. The envoys reached Hull’s office at 2:05 pm. The rest, as they say, is history.
Hitler followed with a convenient declaration of war against the U.S. on Dec. 11. Convenient because it remains completely unclear whether the U.S. public would have supported a declaration of war against Nazi Germany even after Pearl Harbor. Virtually all of Hitler’s advisers (except Ribbentrop) told him not to do it. They calculated - almost certainly rightly - that if they and America remained legally neutral toward one another, the U.S. would pursue a purely Asian war.
Whether Roosevelt could have swayed the public is a fascinating question. But Hitler’s declaration of war changed everything. Just as the envoy’s 45-minute delay did.
When was the term “illegal war” 1st used???
SmackFu has answered your question to the best of his / her ability - that “illegal war” was presumably first used for the first war after the UN Charter was created (1948) that was not legal under the UN Charter.
Do you contest this answer? If not, stop asking.
In answer to this question, the only times you can fight, according to the UN Charter (see Chapter 7), are:
- in self defence against an armed attack (article 51)
- if the UN Security Council authorises it (article 42)
The self-defence provision (art 51) is fairly tightly worded, and would probably preclude first strikes, in the opinion of most international lawyers.
The UNSC-authorised method is quite restricted, too. See art 41 and 42 for this.
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I just have trouble w/ such a concept for reasons that will bring this out of GQ.
[QUOTE]
Many people have problems with these concepts because they don’t understand the nature or purpose of international law. It is fundamentally different from ordinary laws imposed by the state upon its citizens. It is not imposed by any superior body (a “super-power” in its original meaning) but consits of agreements between states that it is the best interests of each state to recognize and maintain (even when they don’t actually follow them). It is also in the best interests of each state that every other state recognize and maintain them, hence the occasional imposition of international law by one state or group of states upon another, so-called, rogue state.
I’m no expert by any means; in fact, nearly everything I know about international law is from reading about it here. I suggest you search for previous discussions (there have been several) and starting another thread about either thread about its nature and purpose here in GQ or about its appropriateness in GD if you still have questions or issues about it.
Not to take away from the discussion here, which is interesting in its own right.
I personally doubt that the usage of “illegal war” dates only to the creation of the UN, since the Geneva Convention (1846) and the League of Nations (1920) considerably predate the formation of the UN, and treaties and customs regulating warfare predate both of those (and almost certainly extend back to antiquity and possibly prehistory). Whether the phrase was used or not, I’d guess the concept of an illegal war dates back to the first time a tribe of cave dwellers promised not to attack a neighboring tribe if they would help them kill a mamoth, and then did anyway.
I have no clue when the term “illegal war” was first used, but I’m willing to bet large sums that it was before 1948.
Quick recap of the history of international law: The Treaty of Westphalia in 1648 is generally acknowledged to be the first recognition of the international polity, comprised of sovereign states, independent and distinct from empires of power and religion. (not to say that states did not exist earlier, but I won’t belabor this point with more trivia) The international system that grew out of that treaty generally held that soverign states had an indisputable right to go to war.
Over time, for a multitude of reasons, states began to recognize that a complete lack of standards of behavior for countries was dangerous, increased the chances of war, and was a waste of time, men, and money. So there began to evolve a code of conduct that all states were expected to abide by. This is international law.
At first, this “law” was basically case law – a country did something, others frowned upon it, and a precident was set. This is known as customary international law, as opposed to treaty law, where countries get together and agree on a legal document.
I’ll just bring up one example, but dammit if I’m not forgetting the commonly cited name for it. Basically, in the early 19th century, some Americans were being hassled by British ships based out of Canada. Taking the “law” into their own hands, these Americans snuck across the border and burned some ships. There was much protesting. After this, the U.S. Secretary of State and the British Foreign Minister (if memory serves) exchanged letters to try to make sure this type of thing didn’t happen again.
They agreed that if one country were to act against another to stop or prevent an attack on the first country, the threat against the first had to be real and of an imminent nature, and that the response to the threat had to be proportional to the threat.
Viola: customary international law on the use of preemptive war.
So, for about a century and a half (until the UN Charter came along and everyone signed and agreed to rules about preemptive war), if a country launched a massive invasion of its neighbor simply because of some piddledy reason, that country could be considered as starting an illegal war.
Hope that helps a bit. I know I’ll think of the name of the case after some sleep.
Very interesting discussion.
A few other issues which might tie in to the discussion:
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does anyone know if the term has roots in “just war” ethical theories? That particular discussion traces back quite a few centuries, arguing for criteria through which a war might be considered “just” (or unjust) and might at least inform a claim that some particular war was “illegal.”
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in the specific context of the United States, one might plausibly describe a war as “illegal” if it doesn’t comply with Constitutional provisions for declaring war. (Please note: I’m not intending to start a flame war here, and I tend to think that any war the Congress goes along with is “legal” enough for practical purposes. But it would be comprehensible to use the term “illegal war”, if you were convinced that the war had been begun without due adherence to the forms the Constitution provides.)
The Caroline incident, that’s it. And I got it reversed, the British sank an American ship in 1837, not the other way around. Apologies for the error.