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The US term GWOT (global war on terrorism) is frequently used, however, as I understand a nation is or is not at war (via declaration or some other formally documented mechanism) with another party. In order for the US to be at war, what are the requirements for the other party? In the distant past the party has been recognized nation states (Germany, Italy, Japan, etc.)

QUESTIONS

  1. Is it possible for the US to be at war with a non-nation actor (ISIL, Al-Qaeda), in the same way that the US was at war with other recognized nations in WWII?
  2. If yes, has there been a declaration of war with XXXX (ISIL, Al-Qaeda, etc.)
  3. Do the conventions of war apply to ideological combatants (i.e. not representing a recognized state)?
  • "a nation is or is not at war with another party". I don't think there's any such binary. Do you have some specific legal question for which this is relevant? – Nate Eldredge Feb 19 '17 at 19:37
  • I believe the US is still technically at war with North Korea as no peace treaty was ever signed. – JakeP Feb 22 '17 at 9:38
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    @JakeP Technically, the US never passed a declaration of war either. – cpast Feb 22 '17 at 17:34
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  1. Is it possible for the US to be at war with a non-nation actor (ISIL, Al-Quaeda), in the same way that the US was at war with other recognized nations in WWII?

Yes. Basically. As noted in the other answer it is usually not called a declaration of war if it is against a non-state actor.

  1. If yes, has there been a declaration of war with XXXX (ISIL, Al-Quaeda, etc.)

Yes. It is called the Authorization for Use of Military Force (AUMF) enacted September 18, 2001, one week after 9-11. This has been applied to ISIL because the executive branch officially determined as a matter of interpretation that ISIL is a successor organization to Al-Queada in Iraq which is one of the organizations covered by the AUMF.

Do the conventions of war apply to idealogical combatants (i.e. not representing a recognized state)?

Yes, to the extent feasible. In the case of a de facto state, like ISIL, this is relatively easy to do. In the case of a more loosely organized terrorist organization it becomes increasingly difficult to apply the definition of core terms in international law like "enemy" and "combatant" and "non-combatant" to the facts on the ground.

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Under Article One, Section Eight of the Constitution,

The Congress shall have power...

To declare war

but does not say what follows from "declaring war", nor does it say what form such a declaration shall take. This rather long document analyzes the notion of "declaration of war". The primary significance of a "declaration of war" lies in international law, see the Hague Conventions of 1899 and 1907. Articles 1 and 2 say:

The Contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war

and

The existence of a state of war must be notified to the neutral Powers without delay, and shall not take effect in regard to them until after the receipt of a notification, which may, however, be given by telegraph. Neutral Powers, nevertheless, cannot rely on the absence of notification if it is clearly established that they were in fact aware of the existence of a state of war

So if the US were to declare war on Canada, we would need to officially notify the government of Canada of this fact, which we could do because there is a country Canada whose government we can inform. This is not possible with "terrorism", which is not a nation. There were official declarations for the War of 1812, against Mexico, Spain, and WW I, WW II (11 declarations). Since "the South" was not (from the perspective of "the North") a separate country, the United States did not declare war on itself to conduct the Civil War. In fact, since the congressional action authorizing military action against the Algerine Cruisers (the 2nd Barbary War) in 1815, the actions authorized by Congress have not used the word "war" (except in mentioning a specific law, the War Powers Act), except in the aforementioned declared wars. Instead, the resolution described what could be done:

it shall be lawful fully to equip, officer, man and employ such of the armed vessels of the United States as may be judged requisite by the President of the United States for protecting effectually the commerce and seamen thereof on the Atlantic Ocean, the Mediterranean and adjoining seas

"Declared war" is a fairly limited genre of use of force, but "being at war" in the broadest sense, is common and can involve concepts and things (terrorism, poverty, drugs).

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    It is worth noting that the US has been involved in several military conflicts since WWII in which the opposing power was a country with a government, yet no formal declaration of war was made. – Nate Eldredge Feb 19 '17 at 20:37

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