UC Law SF International Law Review


John Alan Cohan


The popular conception of war is clearly different from war in the legal sense. It is important to ascertain when war in the formal, legal sense (Legal War) exists because various legal consequences attach. However, when a Legal War exists between belligerent states is far from certain. Few wars are waged pursuant to a formal declaration, and there is substantial disagreement as to when a Legal War has ended. Further complicating the problem, governments have engaged in significant armed conflicts while vigorously denying a state of war has existed between them, notwithstanding the obvious state of belligerency, the engagement of troops, and the loss of lives. In U.S. law, if there is no declaration of war, no authorizing resolution from Congress, and the belligerents deny that a Legal War exists, determining whether and precisely when "war" provisions of military law and life insurance contracts kick in is problematic. Confronted with a limitless variety of armed hostilities, the judiciary has been unable to construct a definition of Legal War applicable in all contexts. Yet it seems capricious, at best, to allow the resolution of substantive legal issues to turn on a verbal formula that appears to shift from case to case.