Ever since the Korean “police action”, “war”, declared by congress, seems to be a no-no. I’ve always assumed that the Geneva Convention basically tries to outlaw calling war “war”, or that so many of our weapons and tactics would be “war crimes” in a declared war, that we just can’t call it “war” anymore. So what’s the scoop?
It has nothing to do with the Geneva Convention, and everything to do with domestic politics. The Constitution provides that the President is Commander in Chief of the armed forces, and gives Congress has the power to declare war. Presidents find it more convenient to simply exercise their authority as CINC without seeking a formal declaration from Congress.
Congress has attempted to limit this authority through the War Powers Act, which basically shuts down any funding automatically for military actions that last longer than a certain time (60 days, IIRC). However, its constitutionality has been questioned, and it has never been invoked since it was passed in the waning days of Vietnam.
The declared or undeclared status of a military conflict would have zero effect on whether something is a “war crime.”
The Geneva Convention (I believe only one of the sides has to declare war for the Geneva Convention to be applicable) and the UN Charter include protocols on declaring war. Of course you do not specific permission from the UN to declare war:
Geneva Convention (These first three articles are common to all parts of the Geneva convention)
oops, cut off the top of the quote section (missing part):
Sure, Presidents don’t want to have to ask Congress for a Declaration of War. Some presidents don’t want to have to ask Congress for anything except a blanket congressional resolution that permits them to act by fiat. One argument is that it takes too long in the present day international climate. Checks and Balances are so messy and time-consuming, you know.
The War Powers Act is an outstanding example of futility in my opinion. I don’t think you will ever see any Congress cut off funding to the armed forces who are actually involved in shooting, ducking and covering. If the President commits the armed forces to an actual fight, Congress has only one course of action available and that is to provide the necessary funds to allow the forces involved to at least protect themselves. And I think the overwhelming sentiment is to do whatever is required to provide enough support to see things through to a successful conclusion.
MC, you should read things before you post them. That excerpt from the Geneva Convention has nothing whatsoever to do with “protocols on declaring war.” In fact, it expressly applies “to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” If the are international treaties on how and when to formally declare war, that ain’t it.
Contrary to what minty green claims, I do think that sometimes it has something to do with the Geneva Convention. For instance, many people have pointed out that it was in the US’s interests not to declare war on Afghanistan, as it allowed the subsequent indefinite detention of the “enemy combatants” that were captured. Had there been a formally-declared war, those captured would have been instead considered “prisoners of war” under the terms of the Convention, and the US would have been technically obligated to repatriate them expediently after the cessation of hostilities. (I say “technically” because in the past this provision of the Convention has been flaunted with impunity by the victorious powers; many German soldiers imprisoned by the UK and USSR were not returned until years after the end of WWII.) In having refused to declare war, the US is now escaping official scrutiny of its treatment of the Taliban soldiers.
Minty green, the UN charter contains most of the protocols (I mean in a very broad sense of the word) for declaring a war (e.g. first you have to go through the UNSC for mediation). The Geneva Convention however makes it clear when a state of war exists.
Cite, please. Not speculation. Legal authority.
Utter nonsense. Since you didn’t get it the first time, allow me to quote the pertinent language once again: “the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” A formal declaration of war has nothing whatsoever to do with P.O.W. status under the G.C.
There are a myriad of reasons why captured Taliban and Al Qaeda fighters were not afforded the legal protections of POW’s, but the simple answer is that they did not fit any of the definitions described in the GC. The Taliban was never the internationally recognized government of Afghanistan–that honor went to the Northern Alliance. Hence, Taliban troops were not considered members of the armed forces of one of the “High Contracting Parties.” Al Qaeda fighters were simply not members of any structured army at all, and hence never had a chance to qualify under any of the GC’s categories of POWs.
The Geneva Convention text defining who is a POW is reprinted below:
I would like to see a cite for this please, as well as the United States’ signature on the dotted line agreeing to any such conditions.
Nonsense. The Geneva Convention doesn’t give a damn whether a formal war has been declared, as the language you quoted and I highlighted maked perfectly clear. In other words, kindly back up your assertion, for it is contrary to everything I know about that treaty.
No, but it certainly makes it harder to justify the position that the Convention does not apply.
Get your foot out of your mouth. The fact that the US did not recognize the Taliban as the legitimate government of Afghanistan is completely irrelevant. The framers of the Convention even anticipated such a situation and inserted a provision which explicitly deals with it:
Elsewhere in the Convention it is made clear that signatories are bound by its terms even when engaged in hostilities with non-signatories:
Therefore whether or not the Taliban was a “High Contracting Party” is irrelevant.
Hardly. First, the last quote, which most certainly does NOT say that signatories are bound by it when engaged in hostilities with non-signatories. It says “the Powers who are parties thereto shall remain bound by it in their mutual relations.” Mutual. Not unilateral. The point of that clause is that even if there are non-signatories in a conflict, the signatories are still bound to treat each other according to its terms; the presence of a nonsignatory in the conflict does not obviate that requirement.
Now, as for section (A)(3), you are quite right that the GC applies to “Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.” The trick, of course, is that the persons have to be members of regular armed forces. The Taliban, by and large, were not such forces–just a bunch of conscripted teenagers and old men who got pointed towards the front line. No rank, no command structure, no uniforms, etc. This is, of course, an arguable point, but that explains the position that the U.S. took with regard to the Taliban. As for the Al Qaeda prisoners, I note that you make no effort to it them under the Convention, which would of course be extraordinarily difficult to do considering its terms.
As I recall, minty green and I had a healthy debate late year on whether or not the Taliban qualified under subsection (3) as POWs. I believe they should have been, but that al-Qaida “Fighters” should NOT have been. As far as I’m concerned the al-Qaida prisoners are being treated with a level of mercy and civility unparalleled in human history.
However, minty is inarguably right; the Geneva Conventions does not, and never has, said anything about “Declaring” war. The laws of war apply whether it’s declared or not, and there’s simply no debate to be had. The absence of “declaring war” terminology in the GC is quite deliberate.
Well, in the true spirit of GQ, I did say it was “arguable” on the Taliban guys. 
And as a matter of policy, I think the decision to not treat the Taliban as POWs was a bad one, though legally defensible. It does not, however, have anything to do with whether Congress declared war, legally speaking.
Back to the OP, Congress has generally not taken to declaring war (as opposed to authorizing military force) for several reasons. I quote from a report from the Congressional Research Service (I have it on paper, sorry no link):
"At one time a declaration was deemed a necessary legal prerequisite to a war and was also thought to terminate diplomatic and commercial relations and most treaties between the combatants. But in the modern era the international legal consequences of declarations have become less determinate; and in fact declarations have rarely been issued since World War II. Perhaps most important, neither a declaration nor an authorization is necessary to trigger application of the laws of war, such as the Hague and Geneva Conventions; for that the fact of armed conflict is the controlling circumstance.
“With respect to domestic law, a declaration of war automatically brings into effect numerous standby authorities conferring special powers on the President with respect to the military, foreign trade, transportation, communications, manufacturing, enemy aliens, etc. In contrast, no standby authorities appear to be triggered automatically by an authorization for the use of force.”
A few examples, also quoting: “A declaration trigger the Alien Enemy Act, which gives the President substantial discretionary authority over nationals of an enemy state who are in the U.S. It activates special authorities to use electronic surveillance for purposes of gathering foreign intelligence information without court order under the Foreign Intelligence Surveillance Act. It automatically extends enlistments in the Armed Forces until the end of the war, makes the Coast Guard part of the Navy, gives the President substanital discretion over the appointment and reappointment of commanders, and allows the military priority use of the natural resources on the public lands and the continental shelf.”
There’s about 117 more pages of this stuff, but I think you should get the idea why Congress does not go around declaring war on everyone.
No, as Minty pointed out, POW status has nothing to do with a formally declared war. We are obligated to treat all prisoners as POWs if they fall under the guidelines outlined above, whether we are in a declared war, police action, border dispute, or any other military action. But we aren’t necesarily obligated to treat anyone who shoots at our soldiers as a POW. If you walked into a US military base and started shooting at people, you’d be charged with murder, not held as a POW, even if you claimed to be a member of the armed forces of Psychonautia.
And the USSR never ratified the Geneva conventions. So they were never in force on the Eastern Front. Germany observed the conventions for US, British and western Allied POWs, but not for Russian POWs. And of course, Russia did not observe the Geneva conventions at all. In fact, when the war was over, Stalin sent all the returning Russian POWs to the Gulags, under the theory that any soldier who survived being a prisoner of the Germans was an obvious collaborator and traitor.
—It says “the Powers who are parties thereto shall remain bound by it in their mutual relations.” Mutual. Not unilateral. The point of that clause is that even if there are non-signatories in a conflict, the signatories are still bound to treat each other according to its terms; the presence of a nonsignatory in the conflict does not obviate that requirement.—
You ignored the second part, the “furthermore.” The question is what “if the latter accepts and applies the provisions thereof.” requires, and who decides what “accepts and applies” means.
—It says “the Powers who are parties thereto shall remain bound by it in their mutual relations.” Mutual. Not unilateral. The point of that clause is that even if there are non-signatories in a conflict, the signatories are still bound to treat each other according to its terms; the presence of a nonsignatory in the conflict does not obviate that requirement.—
You ignored the second part, the “furthermore.” The question is what “if the latter accepts and applies the provisions thereof.” requires, and who decides what “accepts and applies” means.
Bush, Rumsfeld, et al. wanted to treat the taliban fighters they captured as “military detainees” (whatever that means) and not prisoners of war. I agree with you that such a distinction is legally indefensible, but it is nonetheless actually happening, and had an official state of war been declared, there would not even be room for the Administration to make this (spurious but politically effective) argument.
Although I also agree that the distaste for “official” war as a matter of domestic politics is primarily the reason wars are no longer declared, in the particular instance of the war on Afghanistan, the supposedly ambiguous status of the Geneva Convention’s application (at least as analyzed by laymen) was a side benefit.
–Cliffy