Is the war against Iraq “legal?”
Thu Nov 17, 2005 15:04

Is the war against Iraq “legal?”

Researched by, Harmon L. Taylor"

What distinguishes a legal war from an illegal war? Ultimately, the opinion of the victor. But, there really is more to it than that, in the eyes of the Law of Nations, and in the eyes of the members of the bodies politic whose “leaders” are giving the “orders.”

How do we determine the “legality” of committing an act of war? To address this, it helps first to know what is considered to be war, or an act of war.


The “war” is “legal.” An “act of terrorism” isn’t really defined, and no time is invested in that term beyond this mention. An “act of war” is the kind of thing that is defined, conceptually, as “you know it when you see it.” There are some things, such as moving armed troops into an area, running a blockade, or having bombers and fighter aircraft assume “authority” of the skies, that clearly constitute an “act of war.” Some even feel that “economic sanctions” constitute an “act of war.”

What most don’t understand is the actual nature of the parties who are engaged in this war. If we kid ourselves that we're dealing with a "public war," we'll jump to an errant conclusion. To consider the angle of “private war” gets us a lot closer to an understanding of what is at issue. And, in this line of analysis, what constitutes “cause,” or “necessity,” may be fully and legitimately viewed and determined by the private party(ies).

Thus, we need to go the next step. The “war” is “legal.” Since the British People, as well as high ranking British Officials, are questioning the authority of this engagement from their side of the Atlantic, and since all kinds of people, including “congress-people,” are questioning, even through litigation, the authority of this engagement from this side of the Atlantic, especially in light of the complete absence of any “Declaration of War” by Congress, what we’ve got to determine is (1) who really ARE the private parties? and (2) how do we go about curbing the appetite for war by this/these private party(ies)?

To know one very effective solution for this second question is to identify clearly the answer to the first. And, the answer for the second is a lot closer to home than most realize, or even want to accept at first. War is one of the Four Horsemen, and war comes about as a direct consequence of rebellion against the Law of God. We are in rebellion in any number of ways, one of the most obvious and flagrant is our addiction to our dishonest systems of weights and measures. Cure the absence of Money, and there will be a lot less conflict with our God, which will result in a lot less war on earth.



From Bouvier’s 1856:

WAR. A contention by force; or the art of paralysing the forces of an enemy.

2. It is either public or private. It is not intended here to speak of the latter.

3. Public war is either civil or national. Civil war is that which is waged between two parties, citizens or members of the same state or nation. National war is a contest between two or more independent nations) carried on by authority of their respective governments.

4. War is not only an act, but a state or condition, for nations are said to be at war not only when their armies are engaged, so as to be in the very act of contention, but also when, they have any matter of controversy or dispute subsisting between them which they are determined to decide by the use of force, and have declared publicly, or by their acts, their determination so to decide it.

5. National wars are said to be offensive or defensive. War is offensive on the part of that government which commits the first act of violence; it is defensive on the part of that government which receives such act; but it is very difficult to say what is the first act of violence. If a nation sees itself menaced with an attack, its first act of violence to prevent such attack, will be considered as defensive.

6. To legalize a war it must be declared by that branch of the government entrusted by the constitution with this power. Bro. tit., Denizen, pl. 20. And it seems it need not be declared by both the belligerent powers. Rob. Rep. 232. By the constitution of the United States, art. 1, s. 7, congress are invested with power "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; and they have also the power to raise and support armies, and to provide and maintain a navy." See 8 Cranch, R. 110, 154; 1 Mason, R. 79, 81; 4 Binn. R 487. Vide, generally, Grot. B, 1, c. 1, s. 1 Rutherf. Inst. B. 1, c. 19; Bynkershoeck, Quest. Jur. Pub. lib. 1, c. 1; Lee on Capt. c. 1; Chit. Law of Nat. 28; Marten's Law of Nat. B. 8, c. 2; Phil. Ev. Index, h., t. Dane's Ab. Index, h. i.; Com. Dig. h.t. Bac. Ab. Prerogative, D 4; Merl. Repert. mot Guerre; 1 Inst. 249; Vattel, liv. 3, c. 1, Sec. 1; Mann. Com. B. 3, c. 1.

Act of War.

Crimes of War: The Book
Act of War
by David Turns

Until 1945, an act of war in the traditional and historical sense was understood to mean any act by a State that would effectively terminate the normal international law of peacetime and activate the international law of war. The decision was invariably that of the target State and was generally preceded by a statement warning that certain acts would be considered acts of war and would trigger hostilities. Belligerent and neutral States also used the term. Belligerents would interpret as acts of war any action that seemed to assist the enemy; neutrals, any infringement of their neutrality.

In 1945, the United Nations Charter banned the first use of force, putting an end to declarations of war. "All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State," states Article 2 of the charter. The last declaration of war was made by the Soviet Union against Japan in 1945. An example of modern State practice is provided by the United Kingdom, which during the Suez War of 1956 and the Falkland Islands War of 1982 strenuously denied that it was at war with, respectively, Egypt and Argentina. Britain applied the laws of armed conflict in its military operations, nevertheless.

The term act of aggression has to all intents and purposes subsumed the legal term act of war and made it irrelevant, although act of war is still used rhetorically by States that feel threatened. The People's Republic of China stated in 1997 that any attempt by the Republic of China (Taiwan) to declare independence would be regarded as an act of war; and in August 1998, the U.S. Secretary of State, Madeleine Albright, said Osama bin Laden, the reputed mastermind of truck-bomb attacks on two U.S. embassies in Africa, had "declared war on the United States and struck first." In the domestic law of many States, act of war is also used in some contexts, such as insurance and reparations claims, to refer to any use of force in any armed conflict.

David Turns is a barrister and lecturer in law at the University of Liverpool in England. He is the editor of International Law and Espionage (Martinus Nijhoff, 1995, begun by the late Dr. J. Kish).

Document created: 31 July 00
Air & Space Power Chronicles
Information Operations:
An Act of War?

Maj David J. DiCenso, USAF, Reserves

b. Terminology

The value of attempting any legal definition for terms such as "act of war," "use of force," and "act of aggression" is suspect at best. There is simply no value in expending any time, energy, or effort to determine precisely how to define these phrases. Article 41 tells us what a use of force is not, and those acts would thus not warrant a kinetic self-defense strike under Article 51. Thus, for purposes of ENIO, the definitions are practically extraneous.

Similarly, the old-fashioned "act of war" analysis seems inapplicable. The U.N. Charter provides no guidance for defining an "act of war," but it clearly proscribes violence without the involvement of the UN Security Council.42 The Charter does not use the "act of war" language, but it does contain the phrases "use of force,"43 "armed attack,"44 "armed force,"45 and "acts of aggression."46 From the perspective of the Security Council's authorization and ability to take action, these terms become less important. Article 39 permits the Security Council to take action based only upon a finding that a mere "breach of the peace" has occurred. When a nation undertakes an operation that may be deemed a "breach of the peace" by the Security Council, they have exposed themselves to international scrutiny and potential sanctions by the United Nations.

reflections on humanity and media after tragedy

chalenging the use of key words and definitions

By Bill Kirkpatrick, 09/17/2001

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