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:
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.