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.
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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And today, it seems as though “declaring war” is an out-of-date formality.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
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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