Omar Bennett
The concept of 'acts of war' has evolved significantly since the United Nations Charter of 1945, which prohibited the use of force against the territorial integrity or political independence of any state. This has been interpreted in various ways, with some arguing that certain uses of force do not constitute violations of the charter. The US has engaged in military conflicts without formal declarations of war, with Congress authorizing the use of force through resolutions. The president has also acted without prior express military authorization from Congress on at least 125 occasions. The last time the US formally declared war was in 1942 against Hungary, Bulgaria, and Romania. The US Constitution does not specify a format for declaring war, and the extent of the president's authority in this regard is still debated.
| Characteristics | Values |
|---|---|
| Formal declarations of war by the US | The first formal declaration occurred on June 18, 1812, against the United Kingdom. The last time the US formally declared war was in 1942 against Hungary, Bulgaria, and Romania. |
| US engagement in military conflicts without a formal declaration of war | The US has engaged in military conflicts without a formal declaration of war, including in Korea, Vietnam, Afghanistan, Iraq, Syria, and Yugoslavia. |
| US Congressional authorization for military force | Congress has authorized the use of military force through resolutions and funding, such as in the War on Terror and the conflict in Afghanistan. |
| Presidential authorization for military engagements | The president has acted without prior express military authorization from Congress on at least 125 occasions, including in the Philippine-American War (1898-1903) and in Nicaragua (1927). |
| UN Security Council Resolutions | The US has engaged in military engagements authorized by UN Security Council Resolutions, such as the NATO bombing campaign of Yugoslavia in 1999. |
| UN Charter and International Law | The UN Charter prohibits "the threat or use of force against the territorial integrity or political independence of any State." The International Court of Justice and UN Security Council play a role in interpreting and enforcing these laws. |
| Self-defense | Article 51 of the UN Charter recognizes "the inherent right of individual or collective self-defense" until the Security Council takes necessary measures to maintain international peace and security. |
| War Powers and National Defense | The US Congress has passed legislation and delegated powers to the President during wartime, such as the National Defense Act of 1916 and the Atomic Energy Act of 1946. |
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What You'll Learn
Use of force against territorial integrity or political independence
The United Nations Charter of 1945, in Article 2(4), prohibits "the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations." This means that any use of force or aggression that violates the territorial integrity or political independence of a state is considered an act of war.
The interpretation of "territorial integrity" and "political independence" has been a subject of debate. For example, in the Corfu Channel case between Britain and Albania in 1949, Britain argued that its actions were solely to clear Albanian mines from an international strait, and thus, it did not violate Albania's territorial integrity. Similarly, in 1981, when Israeli aircraft attacked an Iraqi nuclear reactor, Israel justified its actions by claiming that it was destroying a facility that could potentially threaten its security by developing nuclear weapons. These incidents highlight the complexity in determining when the use of force constitutes a violation of territorial integrity or political independence.
To provide clarity and address these ambiguities, the United Nations General Assembly adopted Resolution 3314 in 1974, which defines and gives examples of aggression. According to Article 3 of this resolution, invasion or attack by armed forces, military occupation, bombardment of another state's territory, blockade of ports or coasts, allowing a state's territory to be used for preparing an act of aggression against a third state, and sending armed groups or mercenaries to carry out acts of force against another state are all considered acts of aggression.
It is important to note that the UN Security Council, as empowered by Article 39 of the UN Charter, has the authority to determine the existence of any threat to peace, breach of peace, or act of aggression. However, the veto power of its permanent members (the United States, the United Kingdom, the Soviet Union, France, and China) has often hindered its ability to take effective action.
In summary, the use of force against the territorial integrity or political independence of a state is a serious matter and is prohibited under international law. The interpretation of these terms has been a subject of debate, but the UN has provided guidelines and resolutions to clarify and address acts of aggression. The UN Security Council plays a crucial role in determining and responding to threats to peace, but its effectiveness is sometimes limited by the veto power of its permanent members.
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Invasion or attack by armed forces
The invasion or attack by armed forces is a clear act of war. This was exemplified by the Argentine invasion of the Falkland Islands in 1982, which was condemned by the United Nations Security Council as a breach of peace.
The United Nations Charter of 1945, in Article 2(4), prohibits "the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations." This article has been interpreted to mean that any use of armed force outside a state's territory may be a breach, and the term "force" includes aggression. Thus, any state employing force must demonstrate that it is acting in self-defence, as outlined in Article 51 of the Charter, which states:
> "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security."
The interpretation of Article 2(4) has been disputed in certain cases, such as the Corfu Channel incident between Britain and Albania in 1949, and the Israeli attack on an Iraqi nuclear reactor in 1981. In these instances, it was argued that while force was used, it was not directed against the territorial integrity or political independence of a state or the purposes of the UN.
In the context of the United States, the power to declare war rests with Congress, which has authorised the use of military force through resolutions in conflicts such as Korea, Vietnam, Afghanistan, and Iraq. The president has also initiated military engagements without prior express authorisation, such as the NATO bombing of Yugoslavia in 1999 and missile strikes on Syria in 2018.
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Military occupation
Historically, military occupation has been employed by nations seeking to exert their influence or protect their interests in foreign territories. For example, in 1949, there was an incident in the Corfu Channel between Britain and Albania, where Britain insisted it had acted to clear Albanian mines from an international strait. Another instance occurred in 1981 when Israeli aircraft attacked an Iraqi nuclear reactor, claiming it was destroying a facility that could produce nuclear weapons threatening Israel.
The United States has also engaged in military occupation throughout its history. One notable example is the Military Cooperation with Civilian Law Enforcement Agencies Act, enacted in 1981, which provides a framework for military assistance to domestic law enforcement agencies. This act has been utilized in situations such as combating drug smuggling and responding to shooting sprees. Additionally, the Posse Comitatus Act, a federal law, prohibits the use of active-duty military personnel in law enforcement roles, ensuring that the military does not act as a domestic police force.
To conclude, military occupation constitutes a significant act of aggression and can lead to a state of war. It involves the deployment of military forces to exert control over a territory, which is a violation of international law and national sovereignty. Historical examples, as well as the existence of laws such as the Posse Comitatus Act, demonstrate the ongoing efforts to define and regulate the use of military force in domestic and international contexts.
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Blockade of ports or coasts
A blockade is an act of war that prevents access to or departure from a defined part of an enemy's territory, most often its coasts and ports. Blockades are regulated by international law and custom and require advance warning to neutral states. They must be applied impartially against ships of all states.
The British government defined a blockade in a memorandum prepared for the London Naval Conference of 1908–09 as:
> an act of war carried out by the warships of a belligerent, detailed to prevent access to or departure from a defined part of the enemy’s coast.
The memorandum further distinguishes between a military and a commercial blockade. A military blockade is undertaken to attain a specific military objective, such as the capture of a naval port. A commercial blockade has no immediate military objective but is designed to cause the enemy to surrender or come to terms by cutting off all commercial intercourse by sea.
Historically, the modes of application of naval blockades and the effectiveness of blockading naval operations have been greatly changed by conditions of warfare. The extended range of shore batteries, the use of torpedo boats, submarines, and mines, and the employment of aircraft have made any close blockade or any blockade by stationary vessels impossible. This has led to the acceptance of long-range blockades maintained by naval forces out of sight of the enemy's coast as legal if they effectively prevent ingress and egress.
There is little legal authority to precisely define an "effective blockade" under modern naval warfare conditions. However, the risk of seizure for ships attempting to break a blockade must be substantial, requiring the presence of patrolling ships.
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Funding and authorisation of military force
The Authorization for Use of Military Force (AUMF) is a joint resolution of the United States Congress which became law on September 18, 2001, one week after the 9/11 attacks. The AUMF authorized the President to use all "necessary and appropriate force" against those he determined to have "planned, authorized, committed or aided" the attacks, or who "harbored" said persons or groups.
The AUMF grants power to the President to determine both the targets and the actions to be taken. This differs from a declaration of war in that the AUMF is a statutory force authorization, limiting the President's use of full military force, which he would otherwise have in a declaration of war.
Since its passage in 2001, U.S. presidents have interpreted their authority under the AUMF to extend beyond al Qaeda and the Taliban in Afghanistan to apply to numerous other groups and geographic locales. This is due to the act's omission of any specific area of operations. The adoption of this law does not require the targets to be state actors, but can include non-state actors, such as individual persons.
The AUMF has been used to justify military deployment in Afghanistan, the Philippines, Georgia, Yemen, Djibouti, Kenya, Ethiopia, Eritrea, Iraq, and Somalia. Between 2018 and 2020, US forces initiated "counter-terror" activities in 85 countries, with the AUMF being used to launch classified military campaigns in at least 22 countries.
Some critics argue that the AUMF gives the government unlimited powers to wage war without debate, while others call for a new framework statute, arguing that the AUMF is unnecessary, provocative, and counterproductive.
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Frequently asked questions
An act of war against the US is constituted by an invasion or attack by armed forces, military occupation, bombardment of another state's territory, blockade of ports or coasts, and the use of a state's territory to prepare an act of aggression against a third state.
The US Congress has the power to authorize the use of military force and has done so through resolutions and funding for conflicts such as the Vietnam War and the War on Terror. Congress has also delegated more powers to the President during wartime.
Yes, the US has formally declared war against foreign nations in five separate wars, with the last formal declaration of war being made in 1942 against Hungary, Bulgaria, and Romania.
While the President can take military action without prior express authorization from Congress, there is debate over the legal extent of the President's authority. The Constitution does not specify a format for legislation to be considered a "declaration of war."
The US has engaged in extended military engagements without formal declarations of war, such as the Philippine-American War (1898-1903), the NATO bombing of Yugoslavia in 1999, and the missile strikes on Syria in 2018.
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