law_war_manual15

Traditionally, war has often been described as a legal condition between two or moreStates. 70 However, certain law of war rules apply to non-international armed conflicts (such asintrastate conflicts or conflicts between a State and a non-State armed group). 711.5.2 Different Definitions of “War” for Different Legal Purposes. There is no singlelegal definition of “war,” “hostilities,” or “armed conflict,” and the definition of these terms hasvaried in both domestic and international law.In domestic law, “war,” “hostilities,” and “armed conflict” have been interpreteddifferently depending on the specific legal context at issue. 72 For example, under theConstitution, Congress has the power to “declare war.” 73 Thus, “war” might be interpreted todetermine whether a military operation constitutes “war” in this sense. 74 Similarly, the WarPowers Resolution states certain requirements that are triggered when U.S. forces are introducedwrong; and no conventional restriction of the modes adopted to injure the enemy is any longer admitted; but the lawof war imposes many limitations and restrictions on principles of justice, faith, and honor.”).70 1956 FM 27-10 (Change No. 1 1976) 8a (“War may be defined as a legal condition of armed hostility betweenStates. While it is usually accompanied by the commission of acts of violence, a state of war may exist prior to orsubsequent to the use of force. The outbreak of war is usually accompanied by a declaration of war (see par. 20).Instances of armed conflict without declaration of war may include, but are not necessarily limited to, the exercise ofarmed force pursuant to a recommendation, decision, or call by the United Nations, in the exercise of the inherentright of individual or collective self-defense against armed attack, or in the performance of enforcement measuresthrough a regional arrangement, or otherwise, in conformity with appropriate provisions of the United NationsCharter.”); LAUTERPACHT, II OPPENHEIM’S INTERNATIONAL LAW 202 (§54) (“War is a contention between two ormore States through their armed forces, for the purpose of overpowering each other and imposing such conditions ofpeace as the victor pleases.”); LIEBER CODE art. 20 (“Public war is a state of armed hostility between sovereignnations or governments. It is a law and requisite of civilized existence that men live in political, continuoussocieties, forming organized units, called states or nations, whose constituents bear, enjoy, and suffer, advance andretrograde together, in peace and in war.”).71 Refer to § 3.3.1 (International Armed Conflict and Non-International Armed Conflict).72 See, e.g., Fred K. Green, The Concept of “War” and the Concept of “Combatant” in Modern Conflicts, 10MILITARY LAW AND LAW OF WAR REVIEW 267, 269 (1971) (“[I]n US municipal law, the existence of “war” and itsbeginning and termination is a question of objective fact determined for different purposes by different agencies ofthe sovereign. There has been no apparent effort to coordinate federal law so as to permit establishment of fixedcriteria that would be identified and applicable for all purposes. The tremendous variations in result that thissituation produces renders meaningless any attempt to generalize with respect to established criteria.”).73 U.S. CONSTITUTION art. I, § 8.74 Caroline D. Krass, Principal Deputy Assistant Attorney General, Authority to use Military Force in Libya, 8 (Apr.1, 2011) (“[T]he historical practice of presidential military action without congressional approval precludes anysuggestion that Congress’s authority to declare war covers every military engagement, however limited, that thePresident initiates. In our view, determining whether a particular planned engagement constitutes a ‘war’ forconstitutional purposes instead requires a fact-specific assessment of the ‘anticipated nature, scope, and duration’ ofthe planned military operations. Haiti Deployment, 18 Op. O.L.C. at 179.”).19