In 1998, the then-prime minister John Howard rejected the idea that the Australian War Memorial should commemorate Aboriginal people who died in the Frontier Wars on an apparently straightforward basis: "If you want to be legalistic about it, the state of war didn't exist."

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But is that legally correct? I question that. The problem is that neither law nor the history of warfare provides a simple test for deciding when violence becomes war.

There was no single declaration beginning the Frontier Wars, no unified First Nations army and no treaty formally bringing them to an end. But declarations, uniforms and conventional armies have never been necessary ingredients of war.

Australia did not formally declare war in Korea, Vietnam, Iraq or Afghanistan either. In fact, the last two countries we declared war against were Bulgaria and Thailand (in 1942). I don't see them in the Australian War Memorial.

Put simply, a declaration of war is not required for a war to take place. For centuries, lawyers and military thinkers have instead looked to the character and purpose of violence.

Hugo Grotius, who was a major figure in the fields of philosophy, political theory and law during the 16th and 17th centuries,........

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