The Proliferation of Undeclared Warfare

The post-WWII international order has seen the relationships between states become more numerous, complex, and interdependent. In this new age, international institutions such as the United Nations (UN) and the Geneva Conventions have attempted to regulate how wars are initiated and fought. Naturally, these efforts have caused considerable friction with members of the international community, such as the United States, where many believe that the ‘right’ to go to war is an extension of state sovereignty. However, in recent decades, despite a hawkish foreign policy, the US has stopped issuing formal declarations of war. This change is not due to the domestic electoral costs of declaring war; rather, it is the result of the beneficial legal flexibility the US gains when it intentionally fails to formally classify hostilities as war while operating under the constraints of international law. 

One outdated argument suggests that the lack of declarations of war is because domestic electoral costs are too high; politicians shy away from declaring war in fear of not being reelected. Proponents of this argument believe that the human cost of losing loved ones will translate into a negative voter opinion towards those who declared war. However, the fact of the matter is that whether America’s conflicts are declared or not, the majority of voters do not take into account foreign policy when placing their ballots. Secretary of Defense Robert McNamara once mused about going “to war without … arousing the public ire.” In recent decades, his musings have become a reality. New technology and advances in medicine have minimized the domestic human toll of conflict. For instance, in ongoing conflicts, 10 % of US soldiers have died from their wounds, compared to 30% during the Second World War. Additionally, the overall number of soldiers exposed to direct combat has decreased, given the proliferation of unmanned drone strikes. The US’s ability to wage limited war has resulted in a constituency that is detached from American foreign policy. Therefore, an argument solely based on the electoral costs of declaring war is not sufficient. 

Regarding the jus ad bellum conditions under which states may declare war, the UN Charter prohibits the use of force “against the territorial integrity or political independence of any state,” except in cases of individual or collective self-defense. The United Nations Security Council (UNSC) enforces this through punitive resolutions that impose compliance costs ranging from economic sanctions to the use of force. However, given that the US is a permanent ‘P5’ member of the Security Council with veto power, UNSC resolutions regarding alleged US aggression are thereby nullified. Therefore, to hold the US accountable, less powerful nations can supersede the authority of a US veto by convening a special emergency session of the UN General Assembly.

Given the implications of blatantly violating the Charter, to fly under the proverbial radar of the UN, the US has altered the way it advertises military intervention to the international community. The precedent for doing so was established when President Truman sent US troops to Korea without a declaration of war and under the authority of an international UN treaty instead. Terming the conflict, a police action, Truman explained that under the Take Care Clause of the Constitution, international treaties “are laws of the land, and it becomes the President’s duty” to execute them faithfully.The distinction created between war and police action is poignant. While a declared war is “designed to crush and conquer another nation,” a police action is simply a limited military intervention to punish perceived aggressors and to restore the status quo.

To this day, the US has continued to use the convenient ‘police action’ model to justify military intervention abroad. For instance, when questioned about the lack of a war declaration in Vietnam, Secretary of Defense McNamara explained that doing so would imply a “dedication to the total destruction of the enemy,” when US forces were only concerned with restoring the status quo established by the 1954 Geneva Accords. In the same interview, he also acknowledges that doing so would “significantly reduce the flexibility” of US forces to bring North Vietnam to the bargaining table, given the illicit insertion of US special forces into neutral Cambodia to disrupt Viet Cong supply lines. 

Post-Vietnam, with the introduction of the War Powers Resolution, which enables the presidential deployment of troops for up to 90 days before seeking a Congressional Authorization of Military Force (AUMF), these so-called police actions became even easier to conduct. Conflicts such as the 1983 invasion of Grenada, the 1990 invasion of Panama, and the 2003 invasion of Iraq have been authorized in this manner, claiming target nation noncompliance with existing international treaties. Concerning these operations, US officials have maintained that the absence of a formal declaration of war is not what makes military intervention unlawful. Rather, “the only relevant legal question is whether … [intervention] is justified.” Therefore, by painting its military incursions as ‘police actions’ and refraining from official declarations of war, the US generates the plausible deniability necessary to justify that it is not waging war, but merely ‘policing’ to enforce international treaties.

Regarding jus in bello conduct during hostilities, the 1949 Geneva Convention regulates the actions, strategies, and weaponry of military personnel during armed conflict. It does this by establishing standards of international human rights law (IHL). For example, captured military personnel are classified as prisoners of war (POWs) and cannot be tortured. In this context, the wording is critical since the existence of a state of war between two nations determines whether or not the Geneva Conventions apply, and therefore, whether or not war crimes have occurred. Consequently, in non-interstate conflicts, IHL does not apply to insurgents, since they are classified as unlawful combatants instead of military personnel. The useful implications of this distinction are illustrated by the US’s controversial Guantanamo Bay detention facility. 

At Guantanamo, captured insurgents were subjected to ‘enhanced interrogation techniques,’ during the post-9/11 scramble to bring its perpetrators to justice. Due to their classification as unlawful combatants, the insurgents occupied a legal gray area. In the context of IHL, declaring war is akin to crossing a line of no return. On the one hand, if a state issues a formal declaration of war, then it is forced to abide by IHL. On the other hand, when a state does not, it retains the legal flexibility necessary to justify noncompliance. Accordingly, if the US had issued a formal declaration of war against terrorists, it would have implicitly acknowledged their political legitimacy and, thereby, their POW status. However, because it did not, military and government interrogators were able to implement techniques that would have otherwise been illegal in the context of IHL.

 With the recent killing of Quasem Solemani and subsequent Iranian missile strikes, the AUMF has again come under attack, with Representative Joe Kennedy III calling for its repeal. Kennedy reasons that by repealing the AUMF, legislators can redeem themselves by rescuing the power to wage war from Presidential abuse. However, while Representative Kennedy’s qualms are valid, it is essential to recognize that in the modern age, a world where insecurity is generated by threats from non-state actors, Congress is institutionally incapable of the celeritous decision making that such threats require. On the other hand, the President, by nature of his office, possesses the resources necessary to gather and analyze intelligence via his National Security Council and Joint Chiefs of Staff, and therefore can act and respond to national security threats expeditiously. 

Crises have illustrated that small, simple working groups focused solely on foreign affairs; i.e., the President and his Cabinet are better suited to address threats to national security than large, complex bureaucracies; i.e., Congress, which is primarily focused on domestic concerns. In addition, the introduction of the War Powers Resolution by Congress implicitly acknowledges the Congressional shortcomings regarding use of force decision making, and was designed to remedy Congressional indecision. Therefore, on top of the legal leeway that waging undeclared war affords, official declarations of war are anachronistic and only serve as a national security risk.

By not formally declaring war in an environment governed by carefully worded international guidelines, the US can afford itself flexibility when dealing with threats. As a result, when the US engages in hostilities without prior UN approval, it attempts to disguise its violations of the UN Charter by labeling its military intervention as something other than war, such as a ‘police action.’ While this is a risky endeavor, it has paid off tremendously, allowing the accomplishment of policy objectives and ensuring national security while walking the fine line between violation and compliance of international law.

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