FORUM
 JURIST >> OPINION >> Forum >> What is War? 

覧覧覧覧覧覧覧覧覧覧覧覧覧覧
WHAT IS WAR?
Professor Mary Ellen O'Connell
Moritz School of Law, Ohio State University
JURIST Guest Columnist

On March 19, 2003, the United States went to war in Iraq. On October 7, 2001, the United States went to war in Afghanistan. President Bush also declared a global war on terrorism following the attacks of September 11.[1] He said the global war would last 砥ntil every terrorist group of global reach has been found, stopped and defeated. [2] The Bush Administration claims this third war is as much a war as the other two. It claims the Geneva Conventions apply, just as in the other two, along with the other legal rights and obligations of wartime. Important Bush Administration policies turn on this legal claim, including its enemy combatant policy [3] and the policy of targeted killing [4]. Yet, even a cursory review of international law quickly reveals that as a matter of law, the United States is not involved in a global war.

At one time a formal declaration of war meant a state was legally at war whether or not a single shot had been fired. Those days of formalism, however, are long over. Since the adoption of the United Nations Charter in 1945, declarations of war have little or no legal meaning. What matters is the reality of fighting, not formal declarations. No US president has formally declared war since Franklin Roosevelt. In international law today, it is the fact of fighting and the nature of the fighting that are all-important. For the privileges of war to apply, the fighting must be among organized armed groups, and it must reach a certain threshold of intensity, enduring for more than a brief period. [5] We tend to refer to fighting below this threshold as 斗awlessness or criminality when it occurs within a state. It is an 妬ncident when it occurs between two states. [6] We were at war in Iraq and Afghanistan. But we are not engaged in intense fighting everywhere in the world.

Thus, there is no global war. And because there is no global war, the US has no global right to invoke wartime legal privileges. Nevertheless, soon after September 11, 2001, some in the Bush Administration became aware that in wartime, certain human rights are suspended and certain actions in violation of human rights are permitted. As DoD痴 top lawyer, William Haynes has pointed out: 展ar implicates legal powers and rules that are not available during peacetime. [7] Relevant to the Bush policies: in wartime enemy combatants may be attacked without warning; ships and planes may be stopped and searched and cargoes seized; and people may be detained without trial until the end of hostilities.

These are emphatically wartime, not peacetime, privileges. They are necessitated by the exigencies of military conflict. They come at the expense of peacetime rights. It follows that international law establishes conditions-strict conditions-in which wartime privileges may be claimed. The characteristics of the American struggle against terrorism generally do not meet those conditions. We do not see military operations in multiple theaters around the world as we did in World War II. What we see today in the struggle against terrorism is a massive law enforcement effort, operating under the law of peace.

Despite the plain facts, the Bush Administration has steadily put in place policies that could only be lawful in global war:

  • Detainees at Guantanamo Bay will be held until the end of the global war, not the hostilities in Afghanistan or Iraq.
  • The CIA launched a Hellfire missile against a vehicle in remote Yemen; killing six alleged enemy combatants in the global war, not six criminal suspects.
  • A US citizen, arrested in Chicago, is removed from the civilian justice system and placed in a military prison as an enemy combatant until the end of the global war.
  • Prosecutors seek to suppress evidence because this is 努artime. [8]
These and other incidents, involving the lives of hundreds of people already, prove the claim of global war is not mere rhetoric for the Bush Administration. But claiming global war and making a case for it under law are two different things. Under the legal definition of war, self-evidently most of the world is at peace, not war. Although Al Qaeda has been active in Kenya, Germany, Morocco, Spain, Yemen, and elsewhere, none of these countries recognize an armed conflict on their territories. Spain did not declare war following the March 11, 2004 train bombings in Madrid. In all of these countries, government institutions are functioning normally. They have not proclaimed martial law. The International Committee of the Red Cross (ICRC) has not set up operations in any of them. They are pursuing the struggle against terrorism through police methods. Germany has already tried two defendants, in civilian courts, for aiding the September 11 attackers.

The United States, like these other states, has been the victim of a terrorist attack but is not a zone of war. Following the September 11 attack and others against us from Afghanistan, the United States had the legal right to take the fight to that country. We had the right to use force in self-defense. Afghanistan became a zone of active military operations, a theater of war. But the United States did not. The law of war became the operative law in Afghanistan, not in the US. [9] The United States did not have a defensible legal argument for waging war in Iraq; nevertheless, the law of war became operative once the threshold to war was crossed on March 19, 2003. At that point the law of war applied on the territory of Iraq. [10]

All this is not to say that we know with scientific precision what is war and what is peace. Certain territory, at certain times, under certain circumstances, can surely fall in a gray zone between war and peace. However, we do know with precision that where a situation is not clearly characterized as "war," international law demands that individuals enjoy the greater legal protection of peace. The Bush Administration, however, is not even struggling with gray zone cases. Claiming that Chicago痴 O辿are Airport was a war zone for purposes of detaining Jos Padilla is a simple absurdity that the law cannot sustain.

In defending the Administration痴 legal position regarding Padilla and other so-called enemy combatants, Judge Alberto Gonzales, the White House Counsel, relies on a single legal authority: the 1942 United States Supreme Court decision, Ex Parte Quirin.[11] Quirin, however, is inapplicable to the question of whether the United States is today involved in a global war and may claim wartime privileges everywhere. The facts, issues, and law in Quirin are unrelated to this central question. Quirin was decided prior to the adoption of the United Nations Charter and prior to the 1949 Geneva Conventions. It involved defendants who were members of the regular armed forces of a sovereign state in a declared war-when declared war meant something. World War II was a very real war that did in fact reach around the globe. The Quirin defendants were all charged with violations of the law of war. Further, and most significantly, the issue before the Quirin court was whether the President had the authority to try the defendants on the charges against them before a military tribunal rather than in the regular civilian courts.

Today痴 enemy combatant cases raise very different questions. The US has not charged and is not seeking to try Padilla, Hamdi, or the vast majority of detainees at Guantanamo Bay. Their cases do not, therefore, involve the issue raised in Quirin. Rather, they raise the question what is war and when may a government claim wartime privileges? Quirin does not speak to these questions. Yet, Quirin is all the Administration invokes.

By contrast, ample authority in the international law on the use of force and human rights law proves definitively that the claim of global war is unjustified. The President and the Courts should see the claim for what it is-too good to be true: The US gets to declare global war, claim wartime privileges everywhere, and at the same time enjoy peacetime rights? It cannot work that way.

敵lobal war is fine rhetoric for rallying a nation. It is no justification for denying rights.


[1] See George W. Bush, President痴 Address to the Nation on the Terrorist Attacks, 37 Weekly Comp. Pres. Doc. 1301 (Sept. 11, 2001); President痴 Address to a Joint Session of Congress on the United States Response to the Terrorist Attacks of September 11, 37 Weekly Comp. Pres. Doc. 1432 (Sept. 20, 2001); Training Camps and Taliban Military Installations in Afghanistan, 37 Weekly Comp. Pres. Doc. 1432 (Oct. 7, 2001); President痴 Address Before a Joint Session of the Congress on the State of the Union, 39 Weekly Comp. Pres. Doc. 109 (Jan. 28, 2003), http://www.whitehouse.gov

This essay is adapted from Mary Ellen O辰onnell, Ad Hoc War, in Krisensicherung und Humanit舐er Schutz-Crisis Management and Humanitarian Protection 399 (Horst Fischer et al, eds., forthcoming 2004).

[2] Presidential Address to a Joint Session of Congress, supra note 1, at 1348.

[3] Judge Alberto Gonzales confirmed in remarks on February 24, 2004, to a meeting of the ABA's Standing Committee on Law and National Security that the policy of declaring individuals "enemy combatants" is based on the view that "our conflict with al Qaeda is clearly a war." http://www.abanet.org/natsecurity/ at 3; see also Memorandum from William J. Haynes II, General Counsel of the Department of Defense, Enemy Combatants, http://www.cfr.org/publication.php?id=5312.

Three cases involving the enemy combatant policy are now pending at the Supreme Court: Padilla v. Rumsfeld, 352 F.3d 695 (2nd Cir. 2003), cert. granted 72 USLW 3533 (U.S. Feb. 20, 2004)(No. 03-6696); Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003), cert. granted 72 USLW 3446 (U.S. Jan. 9, 2004)(No. 03-334); Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003) cert. granted, 72 USLW 3327 (U.S. Nov. 10, 2003)(No. 03-343). See also Gherebi v. Rumsfeld, 352 F. 3d 1278 (9th Cir. 2003).

[4] Following a "targeted killing" in Yemen in November 2002, National Security Adviser Condoleeza Rice stated, "We're in a new kind of war. And we've made very clear that it is important that this new kind of war be fought on different battlefields." Fox News Sunday (Fox News television broadcast, Nov. 10, 2002), 2002 WL 7898884, at 9. The Deputy General Counsel of the Department of Defense for International Affairs, Charles Allen, made even clearer how the Bush Administration viewed the Yemen killings. He said the U.S. can target "Al Qaeda and other international terrorists around the world and those who support such terrorists without warning." Anthony Dworkin, Official Examines Legal Aspects of Terror War, http://hsm.intellibridge.com/summary?view_id=117201800 (on file with author). He also said the US has the legal right to target and kill an Al Qaeda suspect on the streets of a city like Hamburg, Germany. Anthony Dworkin, Law and the Campaign against Terrorism: The View from the Pentagon (Dec. 16, 2002), http://www.crimesofwar.org/print/onnews/pentagon-print.html at 6.

Aspects of the Proliferation Security Initiative may also be based on the global war justification. When the policy was first announced in the summer of 2003, the Administration said it had a right to search and seize cargo from vessels on the high seas without consent of the flag state. See Rebecca Weiner, Proliferation Security Initiative to Stem Flow of WMD Material (July 16, 2003), http://cns.miis.edu/pubs/week/030716.htm; Michael Evans, U.S. Plans to Seize Suspects at Will, The Times (London), July 11, 2003, at 23. In February 2004, however, the Administration signed an agreement with Liberia and is seeking a similar agreement with Panama providing consent to search vessels. These agreements indicate that PSI will now operate under peacetime rules.

[5] In Prosecutor v. Tadic before the International Criminal Tribunal for the Former Yugoslavia, the Tribunal defined 殿rmed conflict as existing 努henever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state. Prosecutor v. Tadic, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, No. IT-94-1, para. 70 (Oct. 2, 1995).

The Geneva Conventions similarly incorporate a standard of intensity that must be reached to trigger the application of certain minimum rules found in Common Article 3 (common to all four Geneva Conventions). These rules apply in armed conflicts not of an international character, in other words, in civil war. For Common Article 3 to apply, such conflicts must amount to 杜ore than situations of internal disturbances and tensions such as riots and isolated and sporadic acts of violence. IV Commentary to the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War 3-9 (Jean Pictet ed., 1958). In Hamdi v. Rumsfeld, 316 F. 3d 450 (4th Cir. 2003), a U.S. circuit court decided that the law of war applied-and not U.S. (or presumably Afghan) criminal law-because a suspect was apprehended in a 奴one of active military operations, id. at 462, or 殿ctive hostilities, id. at 476. See also Dinstein: 展ar in the material sense unfolds regardless of any formal steps. Its occurrence is contingent only on the eruption of hostilities between the parties, even in the absence of a declaration of war. The decisive factor here is deeds rather than declarations. What counts is not a de jure state of war, but de facto combat. Granted, even in the course of war in the material sense, hostilities do not have to go on incessantly and they may be interspersed by periods of cease-fire . But there is not war in the material sense without some acts of warfare.Warfare means the use of armed force, namely, violence. Yoram Dinstein, War, Aggression and Self-Defence 9 (3d ed. 2001). Accord Leslie C. Green, The Contemporary Law of Armed Conflict 70 (2d ed. 1999). See also Kenneth Roth, The Law of War in the War on Terror, Washington痴 Abuse of Enemy Combatants, For. Aff. (Jan/Feb. 2004) at 2; Gabor Rona, Interesting Times for International Humanitarian Law: Challenges from the 糎ar on Terror, 27 Fletcher Forum of World Affairs 55, 57 (2003).

[6] See, e.g., Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, paras. 194-95.

[7] Haynes, supra note 3; see also, Anthony Dworkin, Law and the Campaign against Terrorism: The View from the Pentagon (Dec. 16, 2002), http://www.crimesofwar.org/print/onnews/pentagon-print.html

[8] Larry Margasak, Uncertainty Shrouds Terror Prosecutions, AP Online, Sept. 8, 2003, 2003 WL 63460199

[9] It is worth emphasizing that war or armed conflict begins when there is an exchange. Thus the war with Afghanistan did not begin on September 11, 2001. It began on October 7, 2001 when the US and UK began the counter-attack. The September 11 attacks, the bombing of the Cole, the East African embassy bombings, and the 1993 World Trade Center bombing were all armed attacks on the United States that created a right of self-defense. Each attack may have been sufficient in itself to create the right. The four taken together make a very strong case. Yet, these armed attacks, even all four together, did not amount to armed conflict. Armed conflict or hostilities only began when armed forces of the United States and the United Kingdom engaged the armed forces of the Taleban, together with Al Qaeda fighters, on the territory of Afghanistan. The US and UK had the right to launch hostilities against Afghanistan as a lawful exercise of self-defense. Under UN Charter Article 51, states may use force in individual and collective self-defense if an armed attack occurs, against those responsible for the attack. Self-defense consists of the right to take proportional and necessary retaliatory military action, including action on the territory of the responsible state for the purpose of defense. The essence of self-defense is destroying the armed attacker痴 ability to attack again. In the case of Afghanistan, the right of self-defense entitled significant numbers of US and UK armed forces to engage the armed forces of the Taleban and Al Qaeda in hostilities. For more on the law of self-defense, see, Mary Ellen O辰onnell, Lawful Self-Defense to Terrorism, 63 U. of Pitt. L.R. 889 (2002).

Judge Gonzales invokes references to the American right of self-defense by the Security Council, NATO, ANZUS and the Rio Treaty Organization as further support for the argument that the United States is in a worldwide war. Gonzales, Remarks, supra note 3, at 3. References to self-defense indicate the right to take necessary and proportional armed action against an attacker. They do not support an argument for characterizing every corner of the globe as a war zone. The members of these various organizations do not view their own territory as war zones. Together they make up a very large segment of the planet.

[10] For discussions of the legality of the war in Iraq, see the American Journal of International Law, vol. 97, nos. 3 & 4; see also, Mary Ellen O辰onnell, Addendum to Armed Force in Iraq: Issues of Legality http://www.asil.org/insights/insigh99a.htm

[11] 317 U.S. 1 (1942). See Gonzales, Remarks, supra note 3, at 4. See also, Haynes, supra note 7.


Mary Ellen O'Connell is William B. Saxbe Designated Professor of Law, Moritz College of Law & Mershon Center, at the Ohio State University.

March 17, 2004

GUEST COLUMNIST

JURIST Guest Columnist Mary Ellen O'Connell is both a professor of law at The Ohio State University Moritz College of Law and an associate of OSU痴 Mershon Center for the Study of International Security and Public Policy. She teaches courses on international law, international dispute resolution, international environmental law, international law and the use of force, and contracts.

Professor O辰onnell痴 books include: International Dispute Settlement, a volume in the Library of Essays in International Law series by Ashgate/Dartmouth Press. She is co-author of International Law and the Use of Force, co-editor of Politics, Values and Functions, International Law in the 21st Century, Essays in Honor of Professor Louis Henkin. She is currently completing work on Enforcement in International Law and a student text on International Dispute Resolution.

Professor O辰onnell holds a B.A. in history from Northwestern, an MSc. in international relations from the London School of Economics, an LL.B. in international law from Cambridge University, and a J.D. from Columbia Law School. Prior to joining the faculty at Ohio State, she was a visiting professor at the University of Cincinnati College of Law, the University of Munich, and the Bologna Center of the Johns Hopkins University School of Advanced International Studies. She has also been an associate professor on the faculties of Indiana University-Bloomington and the George C. Marshall European Center for Security Studies.