Law of War: How Do Wars Begin Between Nations? Understanding the Formal Process

 The breaking out of war among states is not simply a question of random violence or political collapse. International law has long attempted to define the circumstances in which hostilities can begin, with a view to circumscribing unnecessary suffering and providing a basis for the eventual re-establishment of peace. Read along to know more about formal processes, legal obligations, and changing practice governing the initiation of wars among states.

Historical Bases: Formal Notifications and Requirements of Law

Throughout most of modern times, the law of war, also referred to as international humanitarian law, has stated that interstate hostilities must not be initiated without clear notification. The Hague Convention (III) of 1907, which remains applicable to some states, codified this. According to Article 1 of the Convention:

"Les Pouvoirs contratant aident que hostilités entre eux ne doivent pas se déclencher sans avant et express notice, soit au titre d'une déclaration de guerre, motivée, soit d'un ultimatum avec déclaration de guerre sous réserve."

This was necessary to have two chief aims:

• That the neutral powers were given notice of the breaking out of war.
• That a formal reason should be given for the war, so that it may be diplomatically settled at any moment up to the final instant.

Also Read | What is the Indus Water Treaty? Check the history and significance of this agreement

Refusal to make such a declaration was deemed a breach of international law, as emphasized in the Tokyo International Military Tribunal following World War II, where lack of formal declarations by Japan was referred to as being pertinent to charges of crimes against peace.

Evolution of Practice: From Declarations to De Facto Hostilities

Even with these legal bases, the formal practice of declaring war has gradually fallen out of use. By the mid-20th century, international agreements like the United Nations Charter (1945) and the Kellogg–Briand Pact (1928) attempted to limit the use by states of war as a means of policy, instead promoting peaceful settlement of disputes. 

Consequently, most contemporary armed conflicts have not been preceded by formal declarations of war.

Now, under customary international law, a state of war is normally taken to exist when hostilities actually begin, whether or not a formal declaration has been issued. 

The important legal test is the clear intent to employ armed force, as evidenced by acts rather than words. International humanitarian law, such as the Geneva Conventions, is applicable as soon as armed conflict erupts, not after a formal declaration.

Also Checkout: History of Pakistan Occupied Kashmir (POK)

The Escalation Process: How Wars Emerge from Conflicts

Wars do not usually break out overnight. The shift from peace to war usually requires a process of escalation, characterized by:

• Growing intensity: Sides progress from diplomatic disagreements to threats, sanctions, and ultimately, war.
• Issue and participant expansion: Conflicts expand in scope, involving more participants and resources.
• Deterioration of relations: Hostile rhetoric and actions replace negotiation, and parties may begin to view each other as existential threats.
• Militarization and mobilization: States prepare for conflict through military build-up, alliances, and contingency planning.

Escalation is motivated by internal dynamics (like leadership succession or public opinion), external developments, and new players. When fighting starts, laws of war start governing conduct in hostilities even if no declaration has taken place. 

Also Read | Indus Waters Treaty Timeline (1947-2025): Major Events, Suspension and What It Means for India?

Modern Legal and Political Realities

Although the technical requirement for declarations of war remains in some treaties, the reality is that wars now frequently start without them. Instead, the international community concentrates on:

Prohibiting aggressive war: The UN Charter forbids the use of force except in self-defense or with Security Council approval.

Applying humanitarian law: The Geneva Conventions and their protocols govern the conduct of hostilities from the start, safeguarding civilians and combatants alike.

Responsibility for aggression: War crimes tribunals can prosecute leaders for committing aggression, independent of whether such action was pursued under a declared war or otherwise.

Check Out| What is HAROP Drone? Check Its Speed, Range, Cost and Origin Country

Formal vs. Modern Processes for Beginning War

Formal Process of Declaring War: The Indian and Pakistani Contexts

In the 1971 India-Pakistan War, India formally declared war against Pakistan's preemptive air attack, as it needed a formal declaration to consider it an act of war. Today, though, the situation is consistent with more recent international relations, whereby escalation and direct military action become a reality without formal announcements, reflective of modern interstate conflict characteristics.

In India, the President, guided by the Union Council of Ministers led by the Prime Minister, has the right to declare war. However, no constitutionally prescribed procedure for an express declaration of war is provided in the Indian Constitution. Instead, the National Emergency under Article 352 is the closest constitutional provision for a war-like scenario.

Pakistan also lacks an inflexible legal process for delivering declarations of war; decisions usually are made through the civilian regime in consultation with military commanders and are typically dispatched through public proclamations or parliamentary resolutions.

What's Next| Complete List of Air Defence Systems in India, All You Need to Know

Are India and Pakistan Officially at War?

Despite the intensity of military actions-including missile strikes, drone hits, and heavy bombardments from artillery-neither Pakistan nor India has issued a formal war declaration. Both regimes profess to be responding to provocations or defending against aggression, yet have not proceeded to actually declare war.

• International Law: Under the Hague Convention (III) of 1907, hostilities should not be begun without definite warning, in the shape either of a declaration of war or an ultimatum. In practice, however, this law has gone into abeyance, and wars typically begin in action rather than in word.
• Current Reality: The onset of hostilities, as distinct from an official declaration, now typically triggers the imposition of the war laws (Geneva Conventions, etc.). This applies to the present India-Pakistan confrontation, whereby the actions of both armies fall under international humanitarian law because hostilities have been initiated.

Parliamentary and Executive Oversight

In India, any step towards a formal proclamation would need the consent of the President on the advice of the Cabinet. Parliament would probably be notified or consulted, particularly if a National Emergency is proclaimed under Article 352.

In Pakistan, the Prime Minister and the Cabinet, with close consultation with the military, would decide to this effect, perhaps obtaining parliamentary endorsement or support.

Historical Precedent

In the 1971 India-Pakistan War, India made a formal declaration of war after Pakistan's preemptive air strikes, as a formal declaration to qualify it as an act of war. Nowadays, the situation, however, is in accordance with more recent international relations, where escalation and all-out military action are achieved without formal announcements, reflective of the character of modern interstate conflict.

The current India-Pakistan crisis demonstrates that, while international law still recognizes the need for formal war declarations, practice has shifted toward hostilities commencing without them. Both nations have carried out large-scale military operations, but neither has issued a declaration of war, using instead executive authority, parliamentary control, and public statements to address the crisis. 

The laws of war come into operation from the outbreak of hostilities, whether declarations are made or not, underscoring the evolving nature of conflict in the 21st century.

Check Out| List of Top 10 Best Fighter Jets in the World