declaration of war
According to classical international law, the declaration of war was a unilateral, informal declaration of intent to the opposing war party , which announced the entry into a state of war .
A declaration of war was served on a state by another before hostilities began if the person concerned felt his interests threatened or his existence threatened and no diplomatic solution for this state was possible. Due to its alliance obligations, one state could find itself compelled to declare war against another.
Since diplomatic means are to be regarded as exhausted with the declaration of war, the adversaries usually break off diplomatic relations more or less abruptly.
history
A declaration of war is a state action that was partly tied to certain forms. During the time of the Roman kings and in republican Rome , a special college of priests, the fetials , watched over the fact that improperly waged wars did not violate divine law. In order to comply with the prescribed form of declaration of war, the opponent had to be given an ultimatum , which was to be announced in a solemn manner by four priests at the state border , at the entrance gate and on the market square of the seat of the enemy ruler. The posting of the ultimatum set in motion a period of several weeks within which the disputed matter could be settled in a peaceful manner. If the ultimatum was not met, the fetials raised a solemn protest and returned home. The war was then finally decided. After the decision was made, the fetials returned to the enemy frontier to declare war under the prescribed sacred ceremonies . Under the exclamation of the slogan: "Bellum indico facioque" ("I declare war and wage war"), the fetials hurled a bloody lance, scorched at the tip or studded with iron, over the border into enemy land.
This solemn form of the Roman declaration of war lasted until the Roman Empire . Later, the general's envoys took over the actual declaration of war, but the symbolic act of hurling, the necessary requirement of a legally valid war, remained reserved for the priests. When the Romans carried the war to ever more distant countries, the fetials in their homeland threw their spear over a pillar, which symbolized the border of the land to be occupied. As the influence of the priesthood diminished, this ceremony lost its importance and eventually became completely out of practice. The official declaration of war was always necessary under Roman law: “Enemies of the state are those who have declared war on us or on whom we have declared war on behalf of the state; the rest are highwaymen or robbers . "
In the Middle Ages the declaration of war was part of knightly warfare, but it was no longer tied to certain forms. A prince who started a war informed his opponent of the reasons which led him to take this step. Ideally, the notification was made by a herald who enjoyed diplomatic immunity as the bearer of declarations of war or other opposing communications .
The declaration of war in the age of the Thirty Years' War was a pamphlet addressed to the public , which was accordingly widely distributed. The declaration with which Gustav Adolf of Sweden announced his intervention in the Thirty Years War in July 1630 was distributed in five languages and 23 editions.
In the Austro-Prussian War of 1866, neither Prussia nor Austria made official declarations of war. Instead, Prussian and Austrian parliamentarians exchanged notifications on June 19 and 21, respectively , from which it emerged that both states were now in a state of war.
The Franco-Prussian War of 1870 was ended by the declaration of war by Emperor Napoleon III. initiated on July 19, 1870. At this point in time, large parts of the German troops had already mobilized (in Bavaria the mobilization of the troops had already started on July 15th, in Prussia one day later on the 16th of the month). The actual fighting began with a French advance into German territory on August 2, 1870, two weeks after the declaration of war. Nevertheless, the deployment of German troops caught the French army partly unprepared. One of the reasons why the war ended in disaster for France was probably the premature declaration of war, to which Napoleon had been tempted by Bismarck's provocative behavior .
The First World War began with Austria-Hungary declaring war on Serbia on July 28, 1914. This declaration was preceded by an ultimatum on July 23, in which the Austrian government carried out a judicial investigation into the murder of the heir to the throne Archduke Franz Ferdinand of the Serbs with the participation of Austrian official bodies. The declaration of war on Serbia after the ultimatum had expired brought a complicated system of alliances into effect: On July 31, 1914, Austria-Hungary and Russia began general mobilization. Germany declared war on Russia on August 1, 1914 and France on August 3, 1914, and invaded neutral Belgium with her troops . The following day Great Britain declared war on Germany. The Austro-Hungarian declaration of war against Russia took place on August 6, 1914; Montenegro had declared war on Austria-Hungary the day before. France declared war on August 11, and Great Britain declared war on Austria-Hungary the next day; other states followed suit. Italy relied on the statutes of the Triple Alliance , according to which it belonged to only one defensive alliance, and remained neutral for the time being.
Since the Briand-Kellogg Pact of 1928, which 51 states had already signed by the end of 1929, war has been outlawed under international law, so that formal declarations of war are becoming less and less common. In modern international law, each party to a war tries rather to push the start of the conflict on to the other party, to present the start of hostilities as a prevention of impending aggression or to use overarching aspects such as peacekeeping , protection against weapons of mass destruction or human rights as justification.
During the Second World War , war was often only declared when acts of war did not immediately follow. This was the case, for example, in September 1939 when, after the German invasion of Poland, its allies France and Great Britain declared war on the German Reich (so-called seat war or "Drôle de Guerre"). The German Reich also declared war on the USA in 1941, although the latter had already provided logistical and educational support in favor of the war opponent Great Britain for a long time without any open acts of war having followed. At the end of the Second World War, almost all Latin American countries declared war on Germany without any direct acts of war ensuing.
Formal declarations of war have not been made since the Second World War.
Wars without declarations of war
The German attack on Poland in 1939 and the war against the Soviet Union from 1941 began without a declaration of war. In the second case, the German ambassador Friedrich Werner Graf von der Schulenburg presented a memorandum to the Moscow Foreign Ministry on June 22, 1941 , informing about the opening of hostilities, but had to avoid the word “declaration of war” on Hitler's orders. The attack on Pearl Harbor by Japan in 1941 came as a complete surprise and without a declaration of war.
In 1967 Israel attacked the Egyptian airfields with a pre-emptive strike, which triggered the Six Day War .
The USA intervened on South Korea's side in the Korean War in 1950 and called it an "international police operation" carried out on behalf of the United Nations . There was also no declaration of war for the American interventions in Vietnam , Laos and Cambodia ( Vietnam War ), nor for the Gulf War of 1990/91 to liberate Kuwait . For the second Iraq war , the Allies chose the term “disarmament”. The war in Afghanistan since 2001 is usually referred to as the "international military presence" and has been mandated by the UN Security Council through resolutions every year since 2001 . The reason for these artistic terms is that there is no explicit “international mandate” for waging war. Instead, the legal fiction is created that it is not about an intervention by foreign powers, but about the military support of a legal state authority in these countries.
Proceedings under international law
For the procedure of a declaration of war, the domestic procedure, which is regulated or stipulated by the internal structure of the state , must be seen separately from the international law. With the declaration of war, a legally binding declaration to the outside world, i.e. H. This means communication directed to other subjects of international law , which has as its object the declaration of a state of war between the states involved. The Hague Agreement of the Hague Peace Conferences is binding for the form of the declaration of war :
Article 1.
The Contracting Powers recognize that hostilities among them must not begin without prior unambiguous notice, either in the form of a reasoned declaration of war or an ultimatum with a conditional declaration of war.
Article 2.
The state of war is to be reported to the neutral powers immediately and only becomes effective for them after receipt of a report, which can also be sent by telegram. However, the neutral powers cannot plead the failure to report if it is beyond doubt that they actually knew the state of war.
Article 3.
Article 1 of this Agreement shall take effect in the event of war between two or more Contracting Powers. Article 2 is binding in the relations of a belligerent contracting power and the neutral powers, which are also contracting powers. "
This means that a declaration of war is not absolutely necessary for the state to take violent measures. The declaration of war does not have to be made before the outbreak of war in order to legitimize it , but the declaration of war places the armed conflict, if it already erupted before the declaration, on a legally unambiguous basis. Accordingly, the conflict is only to be regarded as a war if at least one of the two warring parties has declared it to be a war, and only from this point on is the relationship hostile. For this purpose, this must be unequivocally explained to the other side, stating the case belli , or displayed in the form of an ultimatum. The state of war must also be indicated to all neutral signatory states of the Hague Agreement. However, the Hague Agreement provides for a legal declaration of war as well as a factual one. The agreement does not provide for a grace period between the declaration of war and the outbreak of war. A declaration of war against natural persons is also not provided, such as the declaration of war against Napoleon by the Allies during his rule of the Hundred Days . Therefore, the declaration of war is actually irrelevant to clarifying the question of war guilt . The declaration of war is therefore often avoided and the war is disguised with a euphemism , because the end of a war is only possible through a peace treaty , which makes other possible solutions difficult. Therefore, many wars develop from the tendency of war to extreme, without war having been declared to be in the legal sense.
Domestic procedure
Germany
Since war of aggression is excluded according to Article 26 of the Basic Law , the establishment of a state of war or a state of defense according to Article 115a of the Basic Law, if this is presented to the outside world as a notification, is equivalent to a declaration of war within the meaning of international law. For the procedure, see Defense Case (Germany) .
Austria
In Austria, according to Art. 38 B-VG, the Federal Assembly is responsible for declarations of war. These are to be officially announced by the Federal Chancellor in accordance with Art. 40 Para. 2 B-VG . There are no further regulations in this regard, and no war has been declared by Austria since the Federal Constitutional Law came into existence .
France
Only the French President , who is also the Commander-in-Chief of the troops, has the right of initiative to declare war . According to Article 35 of the French Constitution , however, Parliament must approve the declaration of war for it to take effect.
literature
- Andreas Zack: Studies on "Roman International Law". Declaration of war, decision of war, formation and ratification of international treaties, international friendship and hostility during the Roman Republic until the beginning of the Principate. Duehrkohp & Radicke, Göttingen 2001, ISBN 3-89744-139-X ( Göttingen Forum for Classical Studies Supplement: History 5), (At the same time: Cologne, Univ., Diss., 1999).
- Anuschka Tischer : Declaration of War. In: Encyclopedia of Modern Times. Edited by Friedrich Jaeger on behalf of the Institute for Cultural Studies (Essen) and in conjunction with the specialist editors. Metzler, Stuttgart, Weimar 2005 ff., ISBN 3-476-01935-7 ( PDF ; 152 kB).
Web links
Wording of the USA's declaration of war on Germany (1941)
Individual evidence
- ↑ The Roman historian Titus Livius describes in his historical work Ab urbe condita (1.32) the details of the introduction of the ritual of the declaration of war by King Ancus Marcius and attributes the priestly college of the fetials "to the ancient people of the Equikolians".
- ^ Eduard von Peucker: The German war system of primeval times . The Roman historian Titus Livius is cited as the source on p. 137 .
- ↑ Declarations of war and the beginning of war , features section, published in Innsbrucker Nachrichten on October 16, 1912.
- ↑ Pandekten 10,16,18: “Hostes hi sunt, qui nobis aut quibus nos publice bellum decrevimus; ceteri latrones aut praedones sunt. "
- ↑ Anuschka Tischer : Official War Foundations in the Early Modern Era , p. 31, published in the series Dominion and Social Systems in the Early Modern Era, Volume 12, with further references.
- ^ The Battle of Königgrätz on July 3, 1866 , Deutsches Historisches Museum , Berlin , as of January 3, 2015.
- ↑ This list is taken from the Österreich Lexikon AEIOU . Keyword: World War, First.
- ^ Ingeborg Fleischhauer: Diplomatic resistance against "Operation Barbarossa". The peace efforts of the German Embassy in Moscow 1939–1941. Ullstein, Berlin 1991, pp. 349-351.
- ↑ RGBl. 1910 p. 82; see also text ( memento of April 11, 2008 in the Internet Archive ).
- ^ Assemblee Nationale ( Memento of November 8, 2015 in the Internet Archive ), Constitution of October 4, 1958.
- ↑ Udo Kempf: The political system of France , p. 151 .
