Why don't we declare war anymore?

FAQ: Is the United States really “at war”?
Jessica Wong, CBC News Online
September 2001

The United States hasn’t formally declared war since World War II. And though declaring war on terrorism may sound as vague as declaring a war on drugs, legally, it can be done.

INDEPTH: U.S. Striking Back
Full Coverage of the War on Terrorism
Were the attacks on the World Trade Center and the Pentagon in effect a declaration of war?
Declarations of war are a custom, and not always adhered to. What happened was this: Because war is ugly and violent and chaotic, the international community, over time, developed a set of wartime customs and conventions. This began with ancient civilizations, and has evolved now to the point where there are laws dictating how the wounded must be protected, how to handle prisoners of war, and what weapons are not to be used. And of course, how to declare war.

However, some feel that, in the last 50 years, wars and other conflicts have gotten more lawless.

And today, it seems as though “declaring war” is an out-of-date formality. In a May 1999 press briefing regarding NATO’s role in Kosovo, David Scheffer, Ambassador at Large of the U.S. State Department for War Crimes Issues said: “There is no need at all for a declaration of war for the laws of war to apply. The Geneva Conventions don’t require it nor does customary international law, so that is simply not a necessary trigger for these laws to apply.”

So yes, the attacks could be seen as in effect, a declaration of war.

So is the United States now at war?

Yes. The President declared the U.S. to be at war, and that is legal.

Here’s how it works.

According to Article 1, Section 8 of the U.S. Constitution, only Congress has the power to declare war. However, Article 2, Section 2 names the president as “Commander-in-Chief of the Army and Navy.” As such, presidents have often bypassed Congress to go to war (whether “declared” or not). President Harry Truman was the first to do that, to go to war in Korea. And ever since, presidents have rarely asked permission.

In 1973, the U.S. Congress tried to reassert itself by passing the War Powers Resolution. (This after Presidents Lyndon Johnson and Richard Nixon ignored Congress while perpetuating the war in Vietnam.) Also known as the War Powers Act, the law states that, without a declaration of war, the president must inform Congress within 48 hours of beginning hostilities. Again, presidents have generally ignored this law.

In regards to international law, since the Senate has ratified the Charter of the United Nations, the president of the United States is also bound by the terms of this international charter. However, since many in the international community view the attacks on the WTC and the Pentagon as war crimes, the U.S. may retaliate according to Article 51 of the charter: “nothing … shall impair the inherent right of individual or collective self defence if an armed attack occurs against a Member of the United Nations.”

So yes, if Bush says they’re at war, they’re at war.

How can the United States be at war if it doesn’t know who its enemy is?
And what if the perpetrator is in fact a terrorist group, not a nation?

As strange as it may seem, the United States actually has a precedent for declaring war against groups –even vague, nebulous groups- rather than nations.

Here’s the precedent: Two centuries ago, piracy was a constant threat to American ships and harbours. So much so that the Constitution laid out parameters for their punishment.

In 1801, under this article, the American Congress authorized President Thomas Jefferson to send the U.S. Navy to fight the Barbary pirates along the coastline of northern Africa. These pirates weren’t a nation, didn’t have a capital, national anthem, or embassy - but this made no difference.

What actions can U.S. President Bush take against terrorist groups?

Since the U.S. Senate has ratified the U.N. Charter, President Bush has to follow international law. So, technically, he cannot retaliate independently.

However, it’s generally accepted that, in these situations, nations have the right to respond in self-defence or “anticipatory self-defence” (although what can be classified as self-defence is not always clear).

So, rather than go to war, heads of state are encouraged to assemble an international coalition and use diplomatic efforts. If force is deemed necessary, the President should seek the authorization of the U.N. Security Council.

That said, history shows many instances where U.S. presidents have ignored international law and acted on their own. This happened most recently in 1998, when President Bill Clinton attacked one of Osama bin Laden’s camps in Afghanistan, following the bombings of two U.S. embassies.

What is NATO’s Article 5? Has Canada committed itself to war as well?

Article 5 of the North Atlantic Treaty says that an armed attack against one or more NATO members is an attack against all. Legally, members can defend themselves individually or as a group. That’s backed up by Article 51 of the U.N. Charter

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But Article 5 doesn’t guarantee that NATO will join in every decision the U.S. makes. It seems to be more of a show of support, and a pledge to decide collectively on escalated action—including the possibility of war.

As for Canada, it shares a particularly close bond—both geographic and economic—with the United States. That’s why the Canadian government has pledged to provide whatever support the U.S. wants.

Will we go to war? John Manley, Canadian Minister of Foreign Affairs, says yes. “If they have things they require, they should simply let us know,” he said. “Let’s remember we have already lost Canadian lives.” Manley said if the U.S. wants Canada’s military assistance, it will get it.

(Of course, Major General Lewis Mackenzie has been publicly dubious about our ability to help, should that be necessary. He told the National Post that even if Canada was asked to contribute armed forces, “we would need a taxi to get us there.”)

Sources:
The Official NATO web site
Findlaw’s Writ - Legal Commentary

Encyclopedia Britannica
With files from CBC.ca

Send us your own questions. We’ll try to answer them: FAQ@home.cbc.ca

External links (will open in a new window)
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U.S. Constitution, Article 1, Section 8

U.S. Constitution, Article 2, Section 2

War Powers Resolution

About the War Powers Resolution

Charter of the United Nations, Article 51

The North Atlantic Treaty, Article 5

>> Insurance companies don’t pay out in a “declared” war.

This is a “demonstrably incorrect fact”. Insurance companies continue to do bussiness as usual in war time. Some events are excluded in the policies, that’s all. Events caused by acts of war are generally not covered but whether the war is declared or not is irrelevant.

A policy can exclude damages caused by flood, earthquake and other acts of God. It can also exclude damages caused by acts of war. It is just part of the policy. My policy states that “a nuclear explosion, even if accidental, shall be deemed an act of war for the purposes of this policy”.

The declaration of war has nothing to do with the insurance business.

** tcburnett**–Very interesting article. But very long too. You’ve copied & pasted the entire article…I doubt this can be considered “fair use”. You’ve been a member here long enough to know that this is really frowned on here. But I’m not a mod…so I’ll let them make the call.

Here’s where the original article can be found: http://www.cbc.ca/news/indepth/background/wtc_usatwar.html

If you’re saying that unless it’s a declared war, we don’t have to follow international rules of war, you are wrong. The Geneva Convention rules apply at all times. If we are making an ‘act of war’ we must obey the Geneva Convention rules. ie, no shooting of non-combatants, humane treatment of POWs, etc.

The Geneva Convention mentions that it is relevant to all instances of Delcared war OR of any other armed conflict between two or more High Contracting Parties…

However, even if we were at ‘war’ with someone who didn’t agree to the Geneva Convention rules, we’d still follow them, since it gives us a moral high ground to stand on. Plus, if you violate Geneva Convention rules while serving for the US Armed Forces, you can and most likely will be court-martialed.

Jman

I thought we had gone over this ad nauseum after September 11th. The bottom line is that the US can be in a state of war without a formal delcaration of war. There is no real advantage to making a formal declaration.

Formal declarations of war:
Great Britain June 18, 1812
Mexico May 13, 1846
Spain April 25, 1898
World War I Germany April 6, 1917
World War I Austria-Hungary December 7, 1917
World War II Japan December 8, 1941
World War II Germany December 11, 1941
World War II Italy December 11, 1941
World War II Bulgaria June 5, 1942
World War II Hungary June 5, 1942
World War II Rumania June 5, 1942

Congressionally authorized military engagements:
Undeclared Naval War with France 1798-1800
First Barbary War (Against Barbary Pirates) 1801-1805
Second Barbary War (Against Barbary Pirates) 1815
Africa (Raid of Slave Traffic) 1820-1823
Paraguay (Seek Redress for an Attack on a Naval Vessel) 1859
Lebanon (Protect Government Against an Insurrection) 1958
Vietnam War 1964-1973
Lebanon (Restoration of Lebanese Government) 1982
Gulf War 1991
War on Terrorism 2001

There are few major differences between an official declaration of war and congressionally authorized military activity as far as international law is concerned. Geneva and Hague conventions remain in force as always. As for domestic law, the President may invoke special powers when the nation is in a state of war or national emergency. Insurance and contracts operate the same as always, however war-related events or losses are not usually covered.

When the country is in a state of war without a formal declaration, the following powers may be invoked:
(1) Allow the U.S. to direct the priority use of communications carriers;
(2) Criminalize the obstruction of interstate or foreign communications and allows the use of the armed forces to prevent such obstruction;
(3) Allow the suspension or seizure of wire communications facilities;
(4) Allow the Federal Energy Regulatory Commission to order the temporary connection of electric energy facilities;
(5) Allow the seizure and use of lumber-related property;
(6) Provide the U.S. priority in any orders for manufacturing and allows the seizure and operation of any plants that refuse to cooperate;
(7) Allow the sale of war supplies, land, and buildings to allies of the U.S.;
(8) Provide the U.S. priority in the purchase of outer continental shelf minerals;
(9) Provide extensive authority to regulate economic transactions with foreign countries and nationals, including the freezing and vesting of enemy property within U.S. jurisdiction;
(10) Make desertion from an armed force a permanent bar to naturalization;
(11) Direct that a naturalized citizen shall lose his nationality if he serves in the armed forces of a hostile state;
(12) Make provision of defense-related information to enemy governments punishable by death or life imprisonment;
(13) Criminalize interference with the operation of U.S. armed forces and with recruitment;
(14) Allow the U.S. to take control of transportation systems for military purposes; and
(15) Allow precedence to the transportation of troops and material of war over all other traffic.

When a formal state of war is declared, these powers may be used:
(1) Allow the Nuclear Regulatory Commission to suspend licenses relating to atomic energy, recapture special nuclear material, and operate nuclear power facilities;
(2) Allow the U.S. to seize property of the Tennessee Valley Authority for the purpose of manufacturing explosives or for other war purposes;
(3) Authorize the President to apprehend, restrain, secure, and remove alien enemies; and
(4) Allow electronic surveillance to obtain foreign intelligence information without a court order for 15 days after a declaration of war.

source: Republican Study Committee, Information Regarding Declarations of War, 9/13/2001 (pdf)