Imperfect Wars

• Author: Craig Forcese
• Pages: 135-140

135

Chapter 17

Imperfet Wars

Our own Government has settled the charaer of this hoile attack. It has

decided it to be an “imperfe sort of war.”

— judGe daniel tallMadGe, suPerior Court, new york (1841)1

T  , jurists opining on war struggled

to accommodate other acts of violence that f‌it poorly into

the formula of formalized inter-state conf‌licts. For instance,

conf‌licts between states and what we today call “non-state actors”

were rarely regarded as true wars. Well into the modern period,

there was no true concept of a “civil war,” let alone war between a

government and an insurgency.2 And even in antiquity, Cicero dis-

tinguished conf‌licts with politically organized peoples from those

involving pirates or other criminal enterprises — the latter occupied

a halfway house between proper war and law enforcement.3 Point-

ing to Cicero, Pufendorf considered combat undertaken with private

actors not a true war, but rather “freebooting.”4

Still, by the eighteenth century, jurists were prepared to recognize

“imperfect wars”: conf‌licts between states lacking formal declarations

of war, but also by the early nineteenth century a class of conf‌licts

short of full interruption of peaceful relations between states.5 Imper-

fect wars amounted to acts of war, without a state of war.6 In the nine-

teenth century, these forms of self-help by states went under the name

“measures short of war.”7 Examples included reprisals — forceful acts