Laws of war |Animus Belligerendi |United Nations and war

Definition of war

In Oppenheim’s words, “war is a contention between two or more states, through their armed forces, for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases”.

Starke says that “war in its most generally understood sense was a contest between two or more states primarily through their armed forces, the ultimate purpose of each contestant or each contestant group being to vanquish the other or others and impose its own conditions of peace”.

Important elements of War which can be derived from the above-mentioned definitions are:

• War is a contention or violence between the armed forces.
• There should be two or more than two States which are opposing each other. When groups within a single state are opposing each other, then it cannot be termed as a War.
• Thirdly, there is the involvement of armed forces and in war, non-combatants are not made the target.
• The main object behind the war is to overpower each other so that the winning state can impose its rules on the other state.

Lawful and unlawful wars

The only type of war recognized by the United Nations as lawful is one fought in self-defence. The rules of warfare are not suspended, however, or otherwise rendered inapplicable merely because the grounds for fighting a particular war are unlawful. In an illegal war both the aggressor and other belligerents must still comport their behaviour with the international customs, practices, and conventions of war. At the same time, some authority suggests that one belligerent may disregard certain rules of war in reprisal for its enemy's disregard of the same rules. Such reprisals have a tendency to spiral downward, however, with each act of retaliation straying further from the lawful norms of warfare.

Animus Belligerendi

Animus Belligerendi means the intention of the parties. Whether war is going on between two states or not, depends upon the intention of those states. When the States contest with each other then it can be said that they are at war when they have this intention. So, the animus belligerendi of the states can be obtained from the following circumstances:

• Firstly, when the states declare themselves that they are at war. It is an instance that shows the express intention on the part of states.
• Secondly, when the war is not expressly declared then if, the states contesting with each other treat it like war or the States adopt some ways of force or other actions amounting to war or
• The third states believe that war is going on between the two states irrespective of the fact that the states in question treat it as war or not.

A declaration of war is a formal act by which one state announces existing or impending war activity against another. The declaration is a performative speech act (or the signing of a document) by an authorized party of a national government, in order to create a state of war between two or more states.

Law of War

Some of the just war theories have been adopted as parts of international agreements and incorporated into the law of war (i.e., international law) that regulates the resort to armed force, the conduct of hostilities, and the protection of war victims.

The Geneva Conventions, for example, are a series of international treaties that are designed to protect non-combatants, civilians, and prisoners of war. The treaties were negotiated in Geneva, Switzerland, between 1864 and 1977. The First and Second Geneva Conventions apply to sick and wounded soldiers and sailors. They contain provisions related to protecting the wounded and sick, as well as medical personnel and transports. The Third Geneva Convention applies to prisoners of war, and the Fourth Geneva Convention applies to people in occupied territories. The Third Convention requires humane treatment of prisoners, including adequate food and water. The Fourth Convention includes provisions that forbid torture and the taking of hostages, as well as provisions related to medical care and hospitals

United States

In the United States, Congress, which makes the rules for the military, has the power under the constitution to "declare war". However, neither the U.S. Constitution nor the law stipulate what format a declaration of war must take. War declarations have the force of law and are intended to be executed by the President as "commander in chief" of the armed forces.

The last time Congress passed joint resolutions saying that a "state of war" existed was on 5 June 1942, when the U.S. declared war on Bulgaria, Hungary, and Romania. Since then, the U.S. has used the term "authorization to use military force", as in the case against Iraq in 2003.

Sometimes decisions for military engagements were made by US presidents, without formal approval by Congress, based on UN Security Council resolutions that do not expressly declare the UN or its members to be at war. Part of the justification for the United States invasion of Panama was to capture Manuel Noriega (as a prisoner of war) because he was declared a criminal rather than a belligerent.

United Nations and war

In an effort to force nations to resolve issues without warfare, framers of the United Nations Charter attempted to commit member nations to using warfare only under limited circumstances, particularly for defensive purposes.

The UN became a war combatant itself after North Korea invaded South Korea on 25 June 1950 (see Korean War). The UN Security Council condemned the North Korean action by a 9-0 resolution (with the Soviet Union absent) and called upon its member nations to come to the aid of South Korea. The United States and 15 other nations formed a "UN force" to pursue this action. In a press conference on 29 June 1950, U.S. President Harry S. Truman characterized these hostilities as not being a "war" but a "police action".

The United Nations has issued Security Council Resolutions that declared some wars to be legal actions under international law, most notably Resolution 678, authorizing the 1991 Gulf War which was triggered by Iraq's invasion of Kuwait. UN Resolutions authorise the use of "force" or "all necessary means".

Competency to declare war

The legality of who is competent to declare war varies between nations and forms of government. In many nations, that power is given to the head of state or sovereign. In other cases, something short of a full declaration of war, such as a letter of marque or a covert operation, may authorise war-like acts by privateers or mercenaries. The official international protocol for declaring war was defined in the Hague Convention (III) of 1907 on the Opening of Hostilities.

Since 1945, developments in international law such as the United Nations Charter, which prohibits both the threat and the use of force in international conflicts, have made declarations of war largely obsolete in international relations, though such declarations may have relevance within the domestic law of the belligerents or of neutral nations.

The UN Security Council, under powers granted in Articles 24 and 25, and Chapter VII of the Charter, may authorize collective action to maintain or enforce international peace and security. Article 51 of the United Nations Charter also states that: "Nothing in the present Charter shall impair the inherent right to individual or collective self-defence if an armed attack occurs against a state."