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Published online by Cambridge University Press: 09 March 2016
The international legal framework has traditionally been divided into a “state of war” and a “state of peace.” Most contemporary authorities still insist upon sharp and tidy categorization in this area, although some would prefer a three-fold or a multi-fold division, instead of the standard two-fold split. This whole approach has come under attack in recent years.
A division into “states” of “war” and “peace” should theoretically produce simplicity and clarity. Instead, however, it leads to hopeless complications. This is clear as soon as any attempt is made to define the “state of war.”
1 Perhaps the most famous is that of Justice Washington in Bas v. Tingy, 4 Dallas 37, referred to in Warren, Charles, The Supreme Court in United States History, Vol. 1, at 156:Google Scholar “It may, I believe, be safely laid down, that every contention by force between two nations, in external matters, under the authority of their respective governments, is not only war, but public war.”
2 For example, the “Phoney War” from September 3, 1939, when France declared war on Germany, until May 10, 1940, when Germany invaded the Netherlands, Belgium and Luxemburg.
3 For example, pacific reprisals, border clashes.
4 For example, Brierly, James, The Basis of Obligation in International Law 234 (Oxford, 1958)Google Scholar; Stone, Julius, Legal Controls of International Conflict 306 (Sydney, 1959).Google Scholar
5 Stone, op cit. supra note 4, at 306.
6 Ibid.
7 Ibid.
8 Other types of definition include (a) the “common meaning” definition (for example, II Westlake, International Law 1 (Cambridge, 1913) and II Oppenheim, International Law 172 (London, 1906), but this is of little use, as there is no common meaning of the word “war,” and because any such meaning will be too imprecise for the complex situations the law has to face; and (b) the “etymological” definition (for example, Olivant, R., Derecho International Publico 277 (Turin, 1906),Google Scholar which is, again, imprecise and devoid of legal character.
9 See especially Schwarzenberger, Georg, “Jus Pacis ac Belli?”, (1943) 37 Am. J. Int’l. L. 460 CrossRefGoogle Scholar; and Jessup, Philip, “Should International Law Recognise an Intermediate State between War and Peace?”, (1954) 48 Am. J. Int’l. L. 98.CrossRefGoogle Scholar
10 Schwarzenberger, supra note 9, at 473.
11 Ibid.
12 See Lauterpacht, E., “The Legal Irrelevance of the ‘State of War’,” (1968) 62 Proc. Am. Soc. Int’l.. L. 62.Google Scholar
13 Similar concern arose when it was realized that as the U.N. Charter is incompatible with the “concept of war,” and as U.N. forces can only be established and used within the limits of the Charter, the laws of war cannot apply to U.N. peace-keeping operations: see Simmons, R., Legal Problems Arising from the United Nations Military Operations in the Congo 172 (The Hague, 1968).CrossRefGoogle Scholar
14 “In the light of the experience of the Second World War and of the compelling humanitarian motives underlying the preparation of these Conventions it was inevitable that the protection of war victims could not be left to the hazardous and debatable determination of the existence of a legal state of war”: Draper, Gerald, The Red Cross Conventions 11 (London, 1958).Google Scholar
15 [1949] I.C.J. Rep. 29.
16 Grob, Fritz, The Relativity of War and Peace (New Haven, 1949).Google Scholar
17 As when the Texas Court of Criminal Appeals held that a half-hour skirmish between tiny sections of the Mexican and United States armies, in June 1916, constituted war in the meaning of Article 3 of the Annex to Hague Convention IV of 1907, and captured Mexican soldiers were thus to be treated as prisoners of war: Grob, op. cit. supra note 16, at 218.
18 Brownlie, Ian, International Law and the Use of Force by States 401 (Oxford, 1963).CrossRefGoogle Scholar
19 Italics added.
20 For example, Article 2(4); Article 33; Article 39.
21 In addition, it must be remembered that the same term, in different contexts, will mean different things. Thus, a particular level of “armed force” sufficient to justify the invocation of sections of the Geneva Conventions of 1949 might not suffice for the 1954 Hague Convention on the Protection of Cultural Property.
