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The Iraq Resolution known as "AUTHORIZATION FOR USE OF MILITARY FORCE AGAINST IRAQ RESOLUTION OF 2002" cites national policy, a war on "terrorism", and United Nations Security Council Resolutions to justify authorization of military force against Iraq, but I am not aware of any document by which the United States has been legally bound by a declaration of war against Iraq as per the federal Constitution (Article 1, Section 8, Clause 11).

Under the Constitution, action by the US President to declare a war is insufficient to bind the United States so as to place it in a state of war. Therefore, according to my interpretation of Grotius (On the Law of War and Peace, Chapter 3, Section XI), the Law of Nations holds that one cannot know whether there was ever a state of war between the United States and Iraq.

  1. Is it plausible that this omission of a simple declaration of war clause in the Iraq Resolution was part of a strategy to circumvent the requirements of the Geneva Conventions??

  2. What are the requirements for a conflict to cause the Geneva Conventions to apply?

  3. Are there any documents which definitively show the same strategy being used to provide a defense against allegations of war crimes in other conflicts?

Addendum 1:

Regarding Razie Mah's very helpful first answer (please vote him up!), I'll try in this post to collect some of the loose ends still remaining on the question.

Regarding whether the 2003 invasion of Iraq violates (Hague 3, Article 3), I should say that I have no reason to doubt Saddam Hussein was given due notice by US Congress and the POTUS of forthcoming hostilities. So that is a "warning" under the purpose stated in the Preamble of Hague-3. However, since we have a good argument that the United States (as in the People of the United States in contradistinction to branches of the United States government) did not declare war under the Constitution, there may easily have been a violation of the "declaration of war" portion of Hague-3. I don't know whether such a violation could be severe enough to constitute a war crime, though, because it might be an issue more of form than of substance, since most Hague-3 signatories probably don't desire their declarations of war to come only from a legislature. In other words, maybe a Presidential ultimatum is sufficient as a declaration of war within the meaning of Hague-3 even though it fails to be a declaration of war under the US Constitution.

Regarding the Taliban, the SCOTUS suggests in Hamdan v Rumsfeld that, according to my reading of the decision, Geneva Conventions Article-3 applies to people captured in Afganistan merely by virtue of the fact that a pre-Taliban regime signed the Geneva Conventions. So I guess the Geneva Conventions are adhering to the territory without regard to the legitimacy of the de facto regime.

It is difficult for me to parse the sentence in Geneva-4-A3, but SCOTUS in the Hamdan decision seems to believe that the phrase "those placed in hors de combat by [...] detention" is a modifier of "persons taking no active part" and not a modifier of "members of armed forces", because SCOTUS held that this Article applies to Osama bin Laden's driver, who was detained in Camp X-ray. For this reason, I differ with Razie Mah's assertion that terrorists are falling outside of some jurisdiction. Perhaps it would help if someone explained the definition of "civilian" in this context. I don't understand why an unlawful combatant is not being classified as a civilian.

When we get to the incidents of abuse and/or murder at Abu Graib prison, I would guess that the application of the Fourth Geneva Convention (GC-4) is strongly dependent on whether Iraq and the United States are in a state of war with each other. I'm not convinced the UN finding a state of war would be relevant. Perhaps some citations can be made to that effect.

  • (4). Why are Unlawful Combatants not recognized as civilians even though they are citizens under the municipal law of some nation state who are not enlisted? How and where is "civilian" defined in this context?
  • (5). What are some source documents to confirm that the War
    Status of the captor State is being used as a defense to war crimes
    allegations, for the US, "Israel, the UK, and former Yugoslavia", as Razie Mah asserted?
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    Your title and first numbered question both ask for motivation. StackExchange doesn't really deal in motivational questions. (I suppose if the resolution itself states the purpose, as most laws and declarations do, this might be on topic). The 3rd question implys that you have already determined that war crimes have been committed.
    – user1873
    Mar 2, 2014 at 15:04
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    Also, unless I'm mis-remembering, USA was never NOT in war with Iraq since the Kuwait war. It was a cease-fire, not peace.
    – user4012
    Mar 2, 2014 at 16:47
  • To answer my question, it should not be necessary to read anyone's mind. It should be sufficient to interpret the Geneva Conventions, and leave the interpretation of motivation up to the reader. Mar 3, 2014 at 9:14
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    @Chad That was just an authorization for use of military force, not a formal declaration of war. Mar 11, 2014 at 2:53
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    @Chad Authorizing the use of force is simply not the same thing legally as a formal declaration of war. Look at this list of declared and undeclared wars: en.wikipedia.org/wiki/Declaration_of_war_by_the_United_States#Formal Mar 11, 2014 at 14:51

2 Answers 2

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Question 1 The Geneva Convention, which only applies between states, would still apply even if neither nation declared war or a military conflict. Initiating war without a warning to the other nation and the neutral parties is itself a war crime, according to the Hague Conventions, Article III. The UN may declare a state of war to be occurring. For instance, the UN along with the Red Cross declared that Syria is in an official state of civil war since July, despite Assad arguing there was not a civil war. The UN then leveled allegations of usage of chemical weapons against him, which is a violation of the Hague Conventions and a war crime. Alberto Gonzalez argued that the Geneva Convention did not apply to the Taliban, because Afghanistan was a failed nation state and thus not a legitimate government and also not a signatory to the treaty, but it was never argued by the Bush lawyers who supported and defended torture programs that a state of war was not occurring because the authorization of military force did not declare a state of warfare. And nevertheless, if the US or Iraq did not declare a war, the UN would have.

The US has not formally declared war since WWII. There are many reasons, stemming from the concentration of power in the executive branch. The president has nearly unlimited war powers for a short period of time during a conflict and does not require oversight from Congress. After this time is over, he must request an authorization from Congress, but this rule has been increasingly broken. Most notably, Obama refused to get authorization for Libya even after he was challenged in the media by members of Congress. So, I don't believe that the change to the usage of authorizations over formal war declarations has anything to do with any attempt to circumvent the Geneva Convention, either. I did a find a reference That states that the US has only declared war 5 times ever and only the behest of the president-wink Avi.

Addendum 1 The US declared war in Iraq at the United Nations. That is the formal declaration. Colin Powell addressed the UN one month before the invasion. The US gave a few reasons for its invasion. The invasion is arguably an act of aggression, or a war crime, not because no war was declared, but because the UN Security Council was not in agreement that Iraq was not fulfilling its obligations to UN weapons inspectors and was in possessions of WMD's. The US declared that it would be invading, gathered an multinational invasion force, and asked for international workers to leave the country.

To easy understanding, a civilian is a noncombatant. They do not take part in any belligerent acts. Child soldiers may also be considered noncombatants, since a crime has been committed for them to be fighting. Irregular forces, enemy combatants, illegal combatants fight or engage in an act of warfare but they may not be citizens or they may not be part of the national army.

Question 2 The OP doesn't specify which parts of the Geneva Conventions he is referring to, but I believe it is in regards to the treatment of suspected terrorists, also known as "enemy combatants." The Geneva Convention was created after WWII and addresses the conduct of wars known as conventional wars, so it only describes the treatment of "regular forces." This is the reason that terrorists fall outside its jurisdiction, since they are not part of a national military force. Terrorists are not enemy soldiers and also not civilians. They are unlawful combatants. The Geneva Convention allows them to be "detained or prosecuted under the domestic law of the detaining state for such action; subject of course to international treaties on justice and human rights such as everyone's right to a fair trial."

The US did not have any domestic laws pertaining specifically to unlawful combatants, so the problem presented would be to create a new type of rules for civilized warfare that used the spirit of the Geneva Convention and applied to asymmetric wars. The Bush Administration didn't do this, though. This led to many US Supreme Court cases trying to determine the rights of captured suspected terrorists, ranging from the rights of basic humane treatment to the right of public jury trials as civilians are entitled.

Question 3 This is the only occasion the defense has been used in the US. Before the US signed the 1949 Geneva Conventions, the US once used military tribunals to try German spies as unlawful combatants. The UK operated black sites for detained suspected terrorists as well, holding them without charge and denying them justice. There were allegations of similar prison abuses seen at Abu Graib. Israel uses military tribunals to try suspected terrorists, although according to the US Supreme Court, this is a proper interpretation of the rules of war and terror suspects are not entitled to further considerations. The former Yugoslavia also used the defense during its war crimes tribunal, but the UN struck down the argument, saying that the international rules of warfare do not allow for the recognition of a category of "illegal combatants"-persons are either combatants or noncombatants.

Regarding the incidents of abuse and/or murder at Abu Graib prison. These actions were war crimes and contravened the Code of Military Justice. It was handled through court-martial and prison sentences for the soldiers involved. Nothing more needs to occur there really unless you think more people need to be charged.

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    To be fair, it's not totally clear that the laws limiting the President's authority on war are constitutional (they've yet to be challenged), and Obama did offer an (admittedly weak) argument for his reading of the war powers act, but I think you moer or less described the situation> However, I'm not sure you really answered the question. Do parts of the Geneva convention not apply to the Iraq war because there was only an authorization of the use of force and not a declaration of war?
    – Publius
    Mar 3, 2014 at 19:24
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    @Avi Which parts of the Geneva Convention? Naaa, you don't have to declare it because the UN can declare that there is a state of war. And war crimes do get charged in those instances.
    – Razie Mah
    Mar 3, 2014 at 19:31
  • any part. But if the US doesn't get to unilaterally determine whether it's a war or not, and so whether or not it declares war doesn't affect how the Geneva Conventions apply, then that's what you need to say in your answer (with a citation).
    – Publius
    Mar 3, 2014 at 19:32
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    @Very good point. I will have to dig up the relevant material, but I'm on it
    – Razie Mah
    Mar 3, 2014 at 19:40
  • Thanks, Razie Mah! See my addendum to the original question. I think we're almost to an answer. I suggest you make an addendum to your answer. Mar 4, 2014 at 13:55
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Question

Was the 2003 Iraq War an undeclared war to circumvent the Geneva Conventions?

#1. The President can't declare war. The Constitution’s Article I, Section 8 specifically lists as a power of Congress the power “to declare War".

#2 It is irrelevant to the Geneva Convention whether a war is declared or not.

About Declarations of War by Congress

The Constitution grants Congress the sole power to declare war. Congress has declared war on 11 occasions, including its first declaration of war with Great Britain in 1812. Congress approved its last formal declaration of war during World War II. Since that time it has agreed to resolutions authorizing the use of military force and continues to shape U.S. military policy through appropriations and oversight.

The United States did not formally declare war against Iraq in 2003 because a formal declaration of war gives the President broad powers that are so wide reaching the legislature reserves them for grave existential threats to the nation. The last war the United States formally declared was WWII. No formal declaration of war was made in Korea, Vietnam, Iraq(1990 or 2003), or Afghanistan.

In WWII President Roosevelt used his war powers to ration food and materials, retool the entire national manufacturing base to produce arms, implement the draft and engage in massive deficit spending. Lincoln used his war powers to suspend habeas corpus, to arrest state legislatures, and park 40,000 troops on the lawn of the Governor of Maryland who was thinking about succession.

1. Is it plausible that this omission of a simple declaration of war clause in the Iraq Resolution was part of a strategy to circumvent the requirements of the Geneva Conventions??

No I don't think it's plausible. The Geneva convention doesn't make any distinction based on declared or undeclared wars. It covers all conflicts between nations.

2. What are the requirements for a conflict to cause the Geneva Conventions to apply?

Summary of the Geneva Conventions of 1949 and Their Additional Protocols

The Geneva Conventions apply in all cases of declared war, or in any other armed conflict between nations. They also apply in cases where a nation is partially or totally occupied by soldiers of another nation, even when there is no armed resistance to that occupation.

3. Are there any documents which definitively show the same strategy being used to provide a defense against allegations of war crimes in other conflicts?

Whether you declare war or not is not a protection or excuse for not living up to your Geneva Convention responsibilities. In 2003 that argument was never presented, nor would it be convincing. The American administration had other legal strategies to excuse their action. Not geared to international legal bodies but geared to protect themselves from U.S. laws; but that's an entirely different question.

If you want to read up on their strategies you could begin with the Yoo Torture memo. It sought to side step anti torture laws by redefining torture to narrowly apply to deadly or acts which caused long term disfigurement or disability. Not very sophisticated.

Secret Bush Administration Torture Memo Released Today In Response To ACLU Lawsuit

Here is a list of the Chronology of documents regarding the US War on Terror and the controversial legal briefs which enabled and excused the abuses.

Documents By Chronology:

The attacks on September 11, 2001 were the catalyst for the "war on terror"– and for a legal revolution in assertions of broad powers for the Commander-in-Chief. In this chronological library of 34 documents, it is possible to chart the decision-making that led to interrogations of prisoners in U.S. custody that were "at a minimum, cruel and inhuman treatment and, at worst, torture," in the words of the former general counsel of the United States Navy, Alberto Mora.

I would end with the John McCain sponsored amendment to the 2005 defense appropriations bill. The Detainee Treatment Act.

4. Why are Unlawful Combatants not recognized as civilians even though they are citizens under the municipal law of some nation state who are not enlisted? How and where is "civilian" defined in this context?

The Geneva Convention identifies Combatants not based on enlistement, uniform, nor even membership in a nation's armed forces; but participants in the conflict who are under a central command structure.

Civilians are anybody in a conflict zone who are not participating in the conflict.

5. What are some source documents to confirm that the War Status of the captor State is being used as a defense to war crimes allegations, for the US, "Israel, the UK, and former Yugoslavia", as Razie Mah asserted?

War Status is not a defense nor does it play any role in excusing war crimes, at least not with regard to the Geneva Convention.

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