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What defines an "Act of War"?

  • For an act to be "an act of war", what conditions must be satisfied (beyond, one presumes, some destruction of life or property), specifically: can any individual commit an act of war, or only agents of a state? what level of death or property destruction rises to "an act of war"? who needs to recognize an act thusly, beyond the victim state? and so on. What elements are all required for some event to be "an act of war"? "Of course you realize this means ..." -

  • Answer:

    Like pornography, it seems that we know an Act of War when we see it. The recent history of war's legality and what constitutes war is an interesting one. It starts in the 1930s with: The Convention for the Definition of Aggression This was a League of Nations treaty, ratified by large numbers of countries in the thirties. The convention didn't use the words 'act of war but defined an 'act of aggression' as: Declaration of war upon another State. Invasion by its armed forces, with or without a declaration of war, of the territory of another State. Attack by its land, naval or air forces, with or without a declaration of war, on the territory, vessels or aircraft of another State. Naval blockade of the coasts or ports of another State. Provision of support to armed bands formed in its territory which have invaded the territory of another State, or refusal, notwithstanding the request of the invaded State, to take, in its own territory, all the measures in its power to deprive those bands of all assistance or protection. The Nuremberg Principles Goering, Hess and other defendants at Nuremberg. After the Second World War the Nazi leadership was prosecuted for 'crimes against peace'. Crimes against peace were defined as: (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i). The United Nations Charter When the United Nations were set up they used the Nuremberg definition of 'crimes against peace' and the Security Council was made responsible for dealing with them. The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. As this made aggressive war illegal, no further wars have been declared. Instead war continued under the guise of 'self defence' or 'enforcing Security Council resolutions' (with a couple of cases of 'fuck you what ya gonna do about it.' thrown in). General Assembly Resolution 3314 Another attempt to codify what constituted aggression in a world where war was no longer declared. The resolution made a distinction between aggression (which "gives rise to international responsibility") and war of aggression (which is "a crime against international peace"). Acts of aggression were defined as: Armed invasions or attacks, bombardments, blockades, armed violations of territory, permitting other states to use one's own territory to perpetrate acts of aggression and the employment of armed irregulars or mercenaries to carry out acts of aggression. This resolution was not binding, but is often quoted. Law Dictionary Definitions Black’s Law Dictionary Provides no definition for “act of war”, but  “act” is defined as [s]omething done or performed, esp. voluntarily; a deed . . . [t]he process of doing or performing and “war” is defined as: a [h]ostile conflict by means of armed forces, carried on between nations, states, or rulers, or sometimes between parties within the same nation or state; a period of such conflict. Dictionary of International and Comparative Law Defines act of war as: Use of force or other action by one state against another” which “[t]he state acted against recognizes . . . as an act of war, either by use of retaliatory force or a declaration of war. 'Acts of War' in the United States In the USA various cases have provided some legal basis for a definition of an act of war. United States v. Shell Oil Co. Involved the liability for cleanup costs for dumping oil byproducts during WW2. It defined act of war as: an act involving military combat during wartime. and any action pursuant to the War Powers Clause in Article I of the United States Constitution Koohi v. United States Involved a claim to recover damages for an Iranian Civilian Airbus  shot down in 1988 by the USS Vincennes. The court decided there didn't need to be an “express declaration of war” for an event to qualify as an act of war. They defined 'time of war' as: [W]hen, as a result of a deliberate decision by the executive branch, United States armed forces engage in an organized series of hostile encounters on a significant scale with the military forces of another nation. 18 USC 2331 Has this definition: (4) the term “act of war” means any act occurring in the course of— (A) declared war; (B) armed conflict, whether or not war has been declared, between two or more nations; or (C) armed conflict between military forces of any origin The Question of Terrorism Lockerbie Bombing Pan-am 103 was bombed by a Libyan and responsibility was accepted by Libya. Whether it was a crime (the perpetrators were jailed) rather than an act of war (the USA retaliated militarily against Libya) seems unresolved. 9/11 The 9/11 attacks were held to be an act of war. The Supreme Court held in the enemy-detention cases Hamdi v. Rumsfield, and Hamdan v. Rumsfeld that the al Qaeda attacks on New York and Washington were acts of war. The act of war argument was used successfully by American Airlines and the World Trade Center leaseholders to avoid liability for damage to buildings in New York. However Al-queda was a non-state actor, re-opening the question of how to define an act of war versus a large scale crime. Conclusion The law defining an act of war is a mess, with no clear and generally accepted definition. The definition by the League of Nations seems to me to be the best attempt at defining what an act of war actually is. The Neuremberg Principles and the United Nations Charter made aggressive war illegal and so countries do not declare war but instead 'enforce security council resolutions'. The role of non-state-actors and the law distinguishing a large scale crime from an act of war is also poorly defined. It seem largely accepted that something is an act of war if it is held to be so by people capable of retaliating, but this is not a theoretical definition so much as a practical one.

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This is a good question, though one without a good, clear, and unambiguous answer. Putting aside particular functional definitions -- e.g., in the terms of an insurance contract for exclusionary purposes -- the most basic definition would be: One nation-state commits an act of war on another, with or without a formal declaration of war, thereby threatening a nation's territorial integrity, political independence or security. In today's world, this has obvious problems, and raises questions that are the meat of numerous discussions in international organizations, think tanks, and governments: Can a non-nation-state commit and act of war? Does physical damage have to result from the act? Does 'territorial integrity' reach into cyberspace? There is no true consensus on the answers to any of these questions, though some countries have come to their own conclusions.

John Burgess

It is pretty hard to talk about an act of war, since from the standpoint of international law, there has been no clarification in any of the UN conventions. A definition of aggression is given, though, by the UN General Assembly Resolution 3314 (XXIX) Definition of Aggression: Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nation. The first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity. Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. The acts enumerated above are not exhaustive and the Security Council may determine that other acts constitute aggression under the provisions of the Charter. According to this, the answers to your questions will be: there has to be no destruction of life or property, the intent and actions are of significance, not the result. Suppose a very weak State would attack a very strong one, send out it's wooden boats against it's dreadnoughts. Even if there is no harm done to the second state, the act would still be an act of aggression; an act of aggression can only be committed by a State or it's agents; an act of war or aggression becomes an act of war or aggression thanks to the intent and actions, not the result. What you may be having in mind is a definition of war, with some scientist having formulated a specific requirement like X hundred/thousand people participating in it, yet I can't recall the definition right now; the recognition is done prima facie, that is, automatically if fitting the definition of the resolution unless decided otherwise by the Security Council. Hope I could help!

Oleg Blinov

Sometimes, it takes as little as one state designating another state's pending action as an act of war, eg. ChinaVsJapan, JapanVsN.Korea, TurkeyVsCyprus/Israel, etc

Christos Damaskos

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