Our last post, discussing the issue of compensation for the property damage that resulted from the battle over Midtown Manhattan, delved into whether or not the battle counts as an “act of war” or even just a “war” or whether it counts as “terrorism” or something else. This is as good a time as any to discuss what it means to be “at war” and what “war” means as a legal concept.
The dictionary gives several definitions of the word, most of which either involve large-scale armed conflict of one sort or another or are metaphors sounding on that concept. The first two definitions also include concepts of conflict between nations or states as such, but the farther down the list you go, the more metaphorical things get. It’s in this metaphorical sense that we get terms like the “War on Drugs” or the “War on Terror,” and even the “Cold War,” i.e, any big, unpleasant, protracted conflict may be described as a “war”.
But that’s not what the legal system means when it uses the term. “War,” in the technical sense, is largely limited to the first definition, i.e., “a conflict carried on by force of arms, as between nations or between parties within a nation.” This sounds like a very precise definition, but as we shall see, it’s somewhat squishier than that. For instance, the term “nation” has been used for a long time and was not as strongly associated with a particular national government as it is today. For example, if we exploit the breadth of the term, the American Civil War can be described both as a war within a single “nation” and between conflicting “nations.” The mere fact that there can be a dispute about that underscores the variety of meanings that can be employed here. This is a philosophical and political concept, and the legal system doesn’t really see its mission as defining those concepts. So Black’s Law Dictionary gives the following definition to “nation”:
1. A large group of people having a common origin, language, and tradition and usu. constituting a political entity. When a nation is coincident with a state, the term “nation-state” is often used.
2. A community of people inhabiting a defined territory and organized under an independent government; a sovereign political state. Cf. state.
NATION, Black’s Law Dictionary (9th ed. 2009)
The second definition comes closest to what laymen usually mean by “nation,” including as it does a requirement of some sort of sovereign government. But the first one says that nations usually constitute a political entity but are not necessary synonymous with it. So it’s possible to speak of continuity in “the British nation” despite the fact that the government went from a monarchy to a republic and back again in the seventeenth century. The nation has a government, but the nation is not the government as such.
Turning then to the term “war,” Black’s gives the following:
Hostile 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. A state of war may also exist without armed conflict. . . .
Black’s Law Dictionary (9th ed. 2009)
So again, “war” means something equivalent to either (1) “large-scale military conflict” or (2) “a formal declaration of a state of war as between sovereign states.” Maybe but not necessarily both.
Whether or not a state of war exists is important for a variety of reasons. We touched on the insurance implications in prior posts. But war and the conduct of war is governed by the law of war, a body of public international law which is frequently used to punish wrongdoing, legally or diplomatically, after the war is over. A nation that disobeys the laws of war may find its soldiers and officers tried by foreign courts. Barring that, they’ll likely find themselves diplomatically unpopular, which will make peacetime negotiations all the more difficult.
But one of the biggest questions as to whether one is obeying the “laws of war” is whether they even apply. So, for example, an unprovoked surprise attack during peacetime is treated somewhat differently than a response to that attack. The former is not sanctioned by the laws of war, because no state of war existed before the attack. But the defending force could use whatever force necessary to repulse the attack and be entirely within the laws of war. A surprise attack during war time is one thing, and good on you if you can pull it off: there was a preexisting right to launch the attack. But a surprise attack during peacetime does not carry with it any such right, and one can expect such actions to be frowned upon. For instance, a nation that initiates a war with a surprise attack is unlikely to be offered favorable terms for surrender.
Note that a state of war can exist without a formal declaration, which we talk about in more detail in section III of this post. The US has only formally declared war six times. All the other “wars,” e.g., the Korean War, the Vietnam War, Gulf War I, Gulf War II, Afghanistan, didn’t involve a formal “declaration of war,” even though Congress did authorize the military action.
II. The Avengers at War
For starters, let’s deal with Nick Fury’s statement, towards the beginning of the movie, that “We are at war.” A few things here. First of all, it doesn’t matter who Nick Fury is, he doesn’t have the authority to declare war on anybody. In the US, such declarations only come from Congress. If S.H.I.E.L.D. is an international organization, it would serve its national masters and probably lack the power to declare war, period. But second, this probably isn’t just rhetoric on Fury’s part. The state of war is legally important, as it authorizes certain actions that would otherwise be problematic or impermissible, the most obvious of which is killing people. But a state of war can also trigger certain powers or procedures. For example, in times of peace the Coast Guard is part of the Department of Homeland Security, but in times of war it answers to the Department of Defense. Recognizing that a state of war exists would thus change the chain of command. It can also theoretically trigger logistical contingency plans, i.e., “If we ever do find ourselves at war, immediately do this, that, and the other thing.” While Fury doesn’t have the power to declare war on anyone, he might well have the authority to make the initial, tactical determination that a state of war exists, declared or not, and take whatever steps are appropriate to deal with the situation. Military officers in the field have as part of their orders the general Rules of Engagement, but those Rules generally permit the officer to do whatever is immediately necessary to preserve his command.
For example, take a look at the Rules of Engagement for the 1992 Somolia expedition. It explicitly states that “The United States is not at war,” but it also states “You have the right to use force to defend yourself against attacks or threats of attack,” and “Hostile fire may be returned effectively and promptly to stop a hostile act.” Fury is a bit further up the chain of command than a front-line infantryman, but he’s probably got the authority to respond to hostile actions as he perceives them.
So, does the Battle of Manhattan count as a war? It’s hard to see why not, especially under the first definition of large-scale military conflict. The Chitauri are obviously an organized military force. We talked about the fact that they aren’t human last year, and because they’re obviously sentient, technology-using beings, that isn’t likely to matter much. Take that out of the equation, and this looks a lot like Pearl Harbor, i.e., a surprise attack organized by a hostile military force. And it quite clearly is a martial force that quite clearly had the intent of conquering the world. It also represents some kind of foreign “nation,” in the broader sense of the term, as even if the sovereignty of the foreign power is unclear, it’s still a community of individuals sufficiently bound together to be able to form an organized military. Getting a court to hold that it was anything other than war is going to be tough to do.
III. Declarations of War
Although Congress has the constitutional power to declare war, it is not necessary for war to be declared in order for the United States to go to war. This practice dates back to the undeclared naval war between the United States and France from 1798 to 1800. In fact, the United States has only formally declared war on six occasions:
The War of 1812, declaration passed on June 18, 1812;
Barbary Wars, declaration passed on March 3, 1815;
Mexican War, declaration passed on May 13, 1846;
Spanish-American War, declaration passed on April 25, 1898;
World War I, declarations passed on April 6 (Germany) and December 11 (Austria-Hungary), 1917;
World War II, declarations passed on December 8 (Japan) and December 11 (Germany and Italy), 1941.
Obviously the United States has been engaged in far more than six wars in its history. Thus, a formal declaration of war is not considered constitutionally necessary.
This is especially true of defensive wars, of which the Battle of Manhattan is an example. It was well established before the Constitution was written that a declaration of war was not necessary if the nation was acting in self-defense. As Hugo Grotius wrote in The Law of War and Peace in 1625:
To understand … the declaration of war, we must draw an accurate distinction between what is required by the law of nature. By the law of nature, no declaration is required when one is repelling an invasion, or seeking to punish the actual author of some crime …. And no more necessary, by the law of nature, is any declaration when an owner wishes to lay hands on his own property.
This view continued through the revolutionary era. “Defensive war requires no declaration,” wrote Emerich de Vattel in The Law of Nations in 1758. And that is still the view today. International law forbids wars of aggression, but defensive wars require no declaration.
In short, while Nick Fury isn’t going to be able to go out and formally declare war on his own authority, he probably is going to have the authority to call it like he sees it for the purposes of directing his agents. Similarly, a civilian court, when faced with the question, would be hard-pressed to call it anything but “war,” even if it is an undeclared, defensive war.