The numerous meanings of war

1. The word ‘war’ lends itself to manifold uses. It is necessary, at the outset, to differentiate between ‘war’ as a figure of speech heightening the effect of an oral argument or a news story in the media, and ‘war’ as a legal term of art. In ordinary conversation, political manifestos, press reports or literary publications, ‘war’ may appear to be a flexible expression suitable for an allusion to any serious strife, struggle or campaign. Thus, references are frequently made to ‘war on terrorism’, ‘war against the traffic in narcotic drugs’, ‘class war’ or ‘war of nerves’. As a rule, this is a matter of poetic licence: the metaphor of war merely serves to convey the gravity of the situation. But the metaphor must not be taken literally, lest it create confusion and incongruities derived from the fact that, in legal parlance, the term ‘war’ is invested with a special meaning. A metaphorical ‘war’ may admittedly segue into a real war in the legal sense: this is what happened when Taliban-led Afghanistan gave a haven to Al-Qaeda terrorists responsible for the outrage of 11 September 2001 (9/11) (see infra 692).

2. In pursuing the legal meaning of war, a distinction must be drawn between what war signifies in the domestic law of this or that State and what it denotes in international law. War, especially a lengthy one, is likely to have a tremendous impact on the internal legal systems of the Belligerent Parties (namely, the States that take part in the international armed conflict). A decision whether war has commenced at all, is going on, or has ended, produces far-ranging repercussions in many branches of private law, exemplified by frustration of contracts or liability for insurance coverage. Similarly, there are multiple relevant issues arising in public law, such as constitutional ‘war powers’ (i.e. identification of the branch of Government juridically competent to engulf the nation in war); the authority to requisition enemy property; tax exemptions allowed to those engaged in military service in wartime; and criminal prosecutions for violations of wartime regulations (spanning a wide range of topics, from trading with the enemy to rationing of scarce commodities). In consequence, domestic judicial decisions pertaining to war are legion. All the same, one must not rush to adduce them as precedents on the international plane. If a domestic tribunal merely construes the term ‘war’ in the context of the legal system within which it operates, the outcome may not be germane to international law. Even should a judgment rendered by a national court of last resort purport to set out the gist of war in accordance with international law, this need not be regarded as conclusive (except within the ambit of the domestic legal system concerned).