What Counts As a “Declaration of War”?

I recently read “Is It Treason?” by Eugene Volokh in the LA Times (registration required; if you can’t be bothered try bugmenot.com). It’s an interesting article in its own right and you may like to read it. However, this passage prompted me to have some additional thoughts:


Treason can also occur even in wars that aren’t officially declared (such as the Civil War or the Korean War), and, in any event, the Authorization for the Use of Military Force that Congress passed after 9/11 counts as a declaration of war, as Sen. Joseph R. Biden Jr. (D-Del.), who drafted the authorization, has stated.

About a week ago I was having a debate with somebody in a comments thread (may have been on MO) about the difference between an Authorization for Use of Military Force and a Declaration of War. My argument was, essentially, that while an AUMF is clearly distinct from a Declaration of War, it still counts as a declaration of war. Thus, any principles of “international law” which apply to a declared war, apply to a war initiated by an AUMF. In fact, I personally believe this is true for any shooting war regardless of how it’s started—even if it was an act of warfare not preceded or followed by any formal declaration.

Hands up anyone who belives that the First Korean War was actually a “police action”. Now hands up anyone who thinks that’s basically just a euphemism. While I understand the rationale and political reality behind such euphemisms, it’s still just semantics. When the US Congress, or any analogous group, publically votes to use military force on another state and it’s broadcast throughout the world in a matter of hours, I don’t think anybody can deny that a state of war has been declared, regardless of what they call the actual agreement that they sign.

It only matters inasmuch as any of us believe that there are laws that bind parties in an international sense. I tend to believe that “international law” is more of an agreement between gentlemen (and ladies) than anything else. When two parties decide to adhere to it (such as, for example, the Geneva and Hague conventions between parties at war) it’s great and all. However, as soon as one or both parties realize that nobody’s going to make them do so it’s just some good sentiments that aren’t worth the paper they’re written on. I believe in all the principles behind those conventions and like to see parties adhere to them, but one has to be pragmatic and accept that people only adhere to them when it’s beneficial. And let’s face it, there are unfortunately few consequences for most countries today in totally ignoring such things, as the fighting in Lebanon so convincingly demonstrated.

However, if one is arguing about the legality of an action, rather than the morality or practicality, definitions are important. I’d be curious to hear what MO readers think about this aspect of the legality and diplomacy of war in the comments section.




—posted by Nicholas.

Comments

  1. The nine wars that the US Congress actually declared: -War of Independence -War of 1812 -2x Seminal Wars (second one never officialy ended) -Mexican-American War -Civil War -Spanish-American War -WWI -WWII The rest of the ‘Military Actions’ that the US has participated in have not had a declaration of war under US and International Law. They have had funding and authorization provided by congress… The waffling of congress has always been an irritant and a legal limiting factor to the US Military…

  2. I assume Volokh is referring to ‘Azzam the American.’ In his case, does it really matter that Congress hasn’t issued a formal Declaration of War, choosing instead to use an AUMF? Isn’t it enough that al Qaeda has declared war on the US? Oh, and DJ, I assume you meant the Seminole Wars, not the Seminal ones.

  3. DJ, btw, upon whom was War declared by the US Congress in the Civil War? How has the waffling of Congress ever been a legal limiting factor to the U. S. Military? And let’s face it, there are unfortunately few consequences for most countries today in totally ignoring such things Is that a bad thing? What higher power do we want imposing consequences on the U. S. when it ignores such things because it is in our national interest to do so? The U. ‘Kofi’s Klub’ N.? I think not. That’s what sovereignty is all about. War is about suspension of the rules of conduct by which our society conducts itself to make another society do what we want it to. That’s what Sherman is all about. And he’s right. You can declare war but not be at war. That’s the Phoney War of 1939 to 1940. Then you can be at war but not declare war, the general state of things for the U. S. in 1940-1941. Who cares if there’s a declaration of war? And actually declaring war to go to war is passe. Our enemies rarely do it. Only a fool like Hitler would willingly declare war on the U. S. And that’s why UBL’s travel plans are now so limited. He didn’t learn from his master’s mistake. But you can’t expect anything other than obfuscation from an organization that changes its name from the Department of War to the Department of Defense. But get used to it. We will never again declare war on another country because no country would be stupid enough to atttack us. All future attacks will come from NGOs like al-Qaeda. That’s part of their defense in depth, being unlocatable with no assets, sort of off-balance sheet armies.

  4. The only thing I have to say is a response to Mrs. Davis. The Department of Defense is NOT the successor to the Department of War. The Department of War was the pre-National Security Act department that controlled the Army. In short, Department of War=Department of the Army.

  5. Wow, am I the only one who remembers why we quit declaring war on countries who allied themselves with the Soviet Union after 1945? It’s kind of a duh, isn’t it? It’s this same kind of historical ignorance that is affecting our whole country. We should have declared war before we went into Iraq. We don’t need to wait for someone else to declare war against us before declaring war ourselves. Where did anyone ever get that idea? Another big DUH on that one.

  6. Libertarian: No, it doesn’t matter whether there’s a Declaration of War. In the article he states that the hardest part of the case is likely to be the difficult standard of proof generally required for treason trials. I find the idea of using video evidence fairly compelling, though. Mrs. Davis: I think consequences for breaching international conventions like the Geneva and Hague conventions should not rest with the U.N. but rather the parties at war. There is no onus to adhere to the convention if the party you are fighting does not. Dfens: It’s pretty obvious why Truman didn’t want to declare war on North Korea. However were the Soviets really so stupid as to not realize that there was a full-on war going on with their client state, whether it was officially declared or not? Would that really have made any difference? Maybe it would, but it seems strange to me. I agree that since those days are gone, it doesn’t make sense to continue that practice.

  7. In the case of North Korea, it was communist red China we were worried about directly and the Soviet Union secondarily. And yes, that made a huge difference in how we fought that war. Our enemies massed just North of the Korean border and our Generals would not bomb them there because that is China. We were worried that if we attacked China they would declare war on us and their allies the Soviets would then too. This is all history 101.

  8. Nicholas, Several years ago I read an article in…I dunno, Military History or something, that described how American pilots were up against RUssian ones for a bit during the Korean War. It was actually kinda funny. The Russian pilots and radar/intercept officers on the ground studied Chinese, so that US intel wouldn’t know that Russians were in the fight. Well, that went to hell pretty quickly. In the heat of a dogfight, pilots were having trouble remembering how to say ‘BREAK LEFT!’ or ‘THEY’RE COMING OUT OF THE SUN!’ in friggin Chinese.

  9. Dfens: I know that. I agree it is basic history. But I don’t see how declaring war *with North Korea* would have inflamed the Chinese. Crossing the border to attack their forces probably would have. But they sent something like a million troops as it is. So I can’t say the ‘don’t anger the Chinese’ tactic worked all that well. If they send hordes of suicidal troops when they’re in a good mood, I don’t want to see them angry. This was before China went nuclear of course. Geek: Yeah, my understanding is pilots were heard speaking Russian but the US didn’t want to release that information publically since they wanted to avoid a war with the USSR.

  10. Ah yes, well, the wisdom of what we did might be questionable, that is true, but often treaties have clauses specifying actions to be taken in the case where a formal declaration of war has been issued against an ally. These ‘police actions’ and such were considered surrogate wars and as such were means by which the US and USSR tested each other’s military capabilities. Kinda like sending bombers into the other’s airspace and seeing when they get intercepted, except with good young men dying. What I find irritating is how the stupidity of those days goes on even though the lame excuse is gone.