The “Renunciation of War as an Instrument of National Policy”

Abstract

Recently there have been several international armed conflicts that cannot simply be called wars in the traditional sense. In 1999, no NATO Member State carrying out armed actions in Yugoslavia had previously been attacked. They did not act in self-defence nor did they help a State by collective self-defence because Kosovo was not a sovereign State. NATO and its members therefore carefully avoided the word war and justified their actions as humanitarian intervention. This notion existed already but " war against terror " is a new one. Created after the terrorist aeroplane attacks in New York and Washington on 11 September 2001, the notion represents a new form of armed conflict. Even though the United States often uses the word war her armed actions, and those of her allies, in Afghanistan against the Taliban regime and the terror organization Al Quaida cannot be called a war of self-defence in the traditional sense. The United States has not been attacked by a foreign State or a de facto regime. There has never been and probably there will never be unanimity on what consti-tutes war. However, McNair's already 76-year-old attempt at a definition seems to be one that many can agree on. Since declarations of war fell out of fashion one has to concentrate on part (c): " A state of war arises in International Law (a) at the moment, if any, specified in a declaration of war; or (b) if none is specified, then immediately upon the communi-cation of a declaration of war; or (c) upon the commission of an act of force, under the authority of a State, which is done animo belligerendi, or which, being done sine animo belligerendi but by way of reprisals or intervention, the other State elects to regard as creating a state of war, either by repelling force by force or in some other way; retroactive effect being given to this election, so that the state of war arises on the commission of the first act of force. " 1