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.
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??
What are the requirements for a conflict to cause the Geneva Conventions to apply?
Are there any documents which definitively show the same strategy being used to provide a defense against allegations of war crimes in other conflicts?
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?