State of War

• Author: Joseph W. Bishop
• Pages: 2505

Page 2505

The existence of a "state of war" for various purposes of domestic and international law is not generally controlled by the existence or absence of a congressional DECLARATION OF WAR. The federal courts, including the Supreme Court, have often held that hostilities, not accompanied by any formal declaration of war (as has been the case in all but five of the approximately 160 occasions in which American armed forces have been committed to combat), were "war" and, conversely, that "peace" existed despite the fact that war had been declared and not terminated by a peace treaty or legislative action. Sometimes the same hostilities have been treated as "war" for one purpose and "peace" for another. Examples can describe the judicial approach better than generalities.

The undeclared naval combat with France in 1798?1799 was treated as war for the purpose of a statute rewarding those who recaptured American vessels "from the enemy" (Bas v. Tingy, 1800) but (many years later) as peace under the Franco American treaty of 1778 (Gray v. United States, 1884). The CIVIL WAR, though of course never declared by Congress, created a state of war under international law, so that neutral vessels running the Union blockade of Confederate ports could lawfully be captured and sold as prizes. (See PRIZE CASES.) American forces sent to China to help suppress the Boxer Uprising of 1900 were engaged in war under Article of War 58, which permitted courts-martial to try charges of murder only "in time of war" (Hamilton v. McClaughry, 1905). But although on June 10, 1949, a declared war still existed between the United States and Germany and Japan, the Supreme Court held that, since there were no hostilities, that date was "time of peace" under a similar Article of War (Lee v. Madigan, 1959; the decision effectively overruled Kahn v. Anderson, 1921). The COURT OF MILITARY APPEALS and at least one civilian court held that the Korean and Vietnam conflicts, though not declared wars, were nonetheless "war" under provisions of the Uniform Code of Military Justice, which suspended the statute of limitations and increased penalties for certain military offenses in wartime (Broussard v. Patton, 1972; United States v. Bancroft, 1953; United States v. Anderson, 1968). But the Court of Military Appeals and the COURT OF CLAIMS also held that only a declared war could trigger a provision of the Code which gives courts-martial JURISDICTION "in time of...