The Real Reason We Need Declarations of War

by John Sides on September 4, 2013 · 25 comments

in Political Theory,War

This is a guest post by my colleague Eric Grynaviski.

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With Obama’s request for Congressional approval for any action in Syria, the war powers debate is once again front page news. Some at the Monkey Cage,  Forbes , the Nation, and  Huffington Post have suggested that Obama should seek an explicit declaration of war; elsewise he is ignoring the constitutional role of Congress in foreign policy. Their concern is democratic control over foreign policy.

But this concern misses another reason that declarations of war are important. As I argue in a recent article in International Theory, declarations of war were historically about something more: providing public justifications for war.  More important than simply saying “there is a state of war” is giving reasons why that war is justified.

Historically, this is what declarations of war did.  They were a set of reasoned, conditional demands that another state must meet to avoid the use of force.  And by making these demands explicit, states, empires, and other communities fulfilled an obligation to each other: to use public reason to resolve conflicts before turning to violence.

In Rome, for example, leaders would first create a list of demands its enemies needed to meet for war to be avoided. They would deliver these demands to their enemies, which were open to discussion and debate by foreign embassies. Then, their enemies had about a month to comply. If the enemy refused to comply, Rome would move to a state of war, announcing this by throwing a bloodstained spear into the enemy’s territory. Declarations of war were invitations to debate the cause for war as well as ultimatums that limited the cause of war to a well-specified set of demands.

Thinking of declarations this way satisfies two moral intuitions.  The most important is that discussion and debate between enemies is a hallmark of civilized international behavior.  Cicero, an earlier defender of declarations, wrote that “there are two ways of settling a dispute; first, by discussion; second, by physical force; and since the former is characteristic of man, the latter of the brute, we must resort to force only in case we may not avail ourselves of discussion.” In other words, states have an obligation to meet and discuss issues that risk war and try to reach agreement. This definition of declarations as reasoned and conditioned is included in the Hague Convention Relative to the Opening of Hostilities (1907).

The second intuition, which is more modern, is that neutral states should have the right to judge others’ decisions and when their liberties or interests are affected—and perhaps even to control or at least influence those decisions.   This idea underlies the Hague Convention as well. One French drafter of the convention explained that citizens in belligerent states as well as neutrals are entitled to an explanation, because they are entitled to judge and dispute that explanation.

Why does all 0f this matter today?  First, this conception of declarations of war leads to a different set of questions through which any attack on Syria should be evaluated.

  1. Is the demand conditional? Is there a clear set of demands through which Assad can avoid an attack?

  2. Has the Obama administration provided clear ways for Assad or neutral governments to discuss the demands? Is the administration willing to listen and debate with others about U.S. justifications for the use of force, or is it simply posturing to enhance the legitimacy of a future intervention?

  3. Has the Obama administration provided clear ways for those most affected by any plausible attack—presumably innocents inside of Syria—to evaluate the attacks, influence their course, or exercise a veto over U.S. policy (if feasible)?

If the Obama administration has met these obligations, then the U.S. government has declared war (at least in fact if not in letter), and done so in keeping with the spirit of international law.

Second, this conception rightly focuses us outward, rather than inward.  The current debate only focuses on the question of “who declares”—Congress, as the Constitution states, or the president, as has often been true, at least de facto.  But this other conception—with its emphasis on stating conditions and providing justifications—focuses on “why declare.”  Answering this question then enables others—not least Syrian innocents—to better evaluate whether they would endorse military intervention by the U.S.

A final point underscores the need for any declaration of war, period.  The refusal to declare war appears to have a strong racial basis. The United States has a long history of declaring war against white, European states such as Britain, Germany, and Spain, as well as Mexico (Santa Anna came from a Spanish family). These declarations usually are reasoned, conditional statements. Wars against non-white, non-European peoples, in contrast, rarely involve declarations of war (e.g., the Barbary States, Native Americans, the Philippines (1899), Korea, Vietnam, Iraq, and many others). A quick analysis, in fact, likely would find that white and European are necessary conditions for U.S. declarations. The link between U.S. policies over time to denigrate non-white peoples, such as Native Americans, and the refusal to use public reason to address them may betray the legacy of race in foreign policy decision-making that has recently come to interest International Relations scholars. Refusing to address the Syrian people today, by assuming that the proper crowd to assess claims about war are in the Beltway rather than overseas, continues that legacy.

{ 25 comments }

Wonks Anonymous September 4, 2013 at 1:56 pm

The racial argument is pretty dumb. We didn’t declare war against Serbia either (in fact, Congress voted down the bill Clinton wanted, just as with Libya).

Wonks Anonymous September 4, 2013 at 1:57 pm

I forgot to mention Japan, from the last declared war, is just as non-white as Korea, the beginning of the undeclared era.

Eric September 4, 2013 at 9:17 pm

Japan is clearly the disconfirming case (the post said ‘rarely’. I would push back though and point out that the argument makes a clear distinction between simple (or unreasoned) declarations and reasoned declarations. The central argument of the post refers to the latter. There is a classical distinction between these kinds in international law. In point of fact, few of the ‘declarations of war’–the specific pieces passed by Congress–have ever been reasoned. If you read the paper, the case of Japan is explicitly addressed. Its of course hard to reduce long arguments to 900 words.

The central claim of the post (and the paper), however, is not the causal claim about necessary conditions (that is not the conclusion). It is one argument within a normative piece about the importance of incorporating public reason into international politics. The blog post reflects this.

Thomas September 5, 2013 at 1:03 am

Desert Storm/Iraq 1, Afghanistan, and Iraq 2 all involved public reasons and well specified demands. They were communicated by the president in each case, not by the Congress in the resolutions approving the action, but I don’t see why that would make any difference.

Eric September 5, 2013 at 5:58 am

This is the right response to the race-based part of the argument. You are right that that on my argument presidential addresses (esp. the address to Congress asking for a declaration of war) or other forms of public diplomacy count as fulfilling the function of making reasoned, conditional statements. The crucial concern is meeting moral burdens and not the form meeting those burdens takes.

In fact, I do not see why, to fulfill the function of making reasoned, conditional demands before fighting starts, it per se needs to be done by a member of the state instead of some IO. NATO’s stated objectives of the bombing operations included “the unconditional and safe return of all refugees and displaced persons and unhindered access to them by humanitarian aid organizations.” While the Kosovo operations did not involve a formal declaration of war, the objectives included a set of reasoned and conditional demands for the bombing to cease: “Responsibility for the present crisis lies with President Milosevic. He has the power to bring a halt to NATO’s military action by accepting and implementing irrevocably the legitimate demands of the international community.” In a multilateral intervention, in fact, it may be useful to have a single set of reasoned, conditional demands by the community of states who are intervening rather than a varied set of demands.

Returning to your question, the test of whether U.S. conduct in Afghanistan and Iraq count as declarations on this definition then becomes (a) whether the sum set of demands was conditional, (b) whether they were ‘justly reasoned’, meaning that they cite some just cause (however defined) as that condition, and (c) whether these demands were sincerely conditional, meaning that compliance with those demands would avoid war. The last clause is important because one should not make demands in order to ensure that a war will be fought (intentions in other words matter).

With this in mind, the 2003 war likely fails the test of a reasoned, conditional declaration if one believes the significant evidence provided by Woodward and others that the Bush administration likely would have attacked Iraq if Hussein had complied with U.S. demands (at least in the final few months). If this is right, the reasoning really isn’t conditional. As an example, consider Bush’s final condition: “Saddam Hussein and his sons must leave Iraq within 48 hours. Their refusal to do so will result in military conflict commenced at a time of our choosing.” Bush told a joint meeting later, “If Hussein leaves, we’ll go in anyway” (Woodward 2004, 369). This clearly fails the conditions test.

Afghanistan and Iraq 1 are stronger candidates. Its plausible that one might argue that the Obama administration is close in Syria. If Kerry were to make clear that the U.S. would not strike Syria if Syria were to turn over or credibly dismantle its chemical weapons facilities, else wise the United States would attempt to degrade that capacity, then it would meet this test. Alternatively, if Obama’s previous “red lines” including a threat to use force if chemical weapons were used, and that red line was clear and reasoned, then the United States has already met its public burdens.

Thomas September 5, 2013 at 10:19 am

It is interesting that in the Kosovo and Syria cases you do not undertake any investigation of the unexpressed private intentions of the actors. If planning for the aftermath of a coup is the same as planning a military invasion to depose a leader, then you will need substantially more evidence for the Kosovo and Syria cases than you have.

Eric September 5, 2013 at 11:25 am

Good question. The key point here relates to declarations. The question of sincerity relates to conditionality. Within traditional just war theory, questions of right intentions, which is a broad term, are separable from declarations. The only relevant dimension of sincerity in my argument is whether a state is sincere that if its conditions are met, it will not continue toward war. Whether a state sincerely believes those conditions to be just is a different question.

Mark September 4, 2013 at 2:44 pm

The racial argument is really weak. We had an undeclared naval war with France in the late 1790s. And the Mexican-American War had an explicitly racist element, notwithstanding Santa Anna actually being European.

The Barbary Pirates did involve a declaration of war, so you’re simply wrong there – they demanded $225,000 and declared war, and the US refused to pay. So much for the legitimacy of declarations of war. Declaring war back might have been complicated by the nominal suzerainty of the Ottoman Empire over the pashas.

More importantly, this entire article is built on the false premise that the US has “demands” in Syria. Is it not obvious that this is punitive operation designed to deter the use of chemical weapons in the future? Sorry, but this article is a joke. It’s a tendentious attempt to frame the analysis in a way that has no result except to condemn US intervention.

Ronan Fitzgerald September 4, 2013 at 5:30 pm

This, and Wonks anon above, doesnt really disprove the argument in the OP though. Finding examples against the norm doesnt disprove the norm – hence all thos old sayings ‘the exception to the rule’, a swallow doesnt make a spring’ etc

Mark September 4, 2013 at 8:47 pm

Of course they do. It’s ludicrous that you would lump Mexico in with “white European” powers simply because Santa Anna was criollo (and who himself had a pretty low opinion of the Mexican people, their mixed-race nature, and their Catholicism). So when writer says that, “A quick analysis, in fact, likely would find that white and European are necessary conditions for U.S. declarations,” it’s complete baloney.

Nice job moving the goalposts, by the way. You can’t set something as logically “necessary conditions” and then be like “aww man it’s just a NORM.” Pretty hard to establish a “norm” when someone happens about once every 30-50 years, too. (1812, 1846, 1898, 1917, 1941). The US has only declared war 5 times in its history.

Much more likely explanation than “we reserve declarations of war for white people” is that the game changed after 1945, and before that we only fought European powers and neighbors. Pretty likely explanation given that (1) we declared independence from a European power and (2) our neighbors were controlled by European powers for most of our history.

Eric September 5, 2013 at 7:05 am

I am just picking up on the last part of this, where there is a discussion of how things changed after 1945. Is something unique after 1945? This depends on how you define declarations of war. The 1907 definition requires that declarations of war precede fighting. The formulation of the principle was (largely) a reaction to the Russo-Japanese War, where a declaration of war from Japan came after shooting started.

If one includes ‘precedes’ as a necessary element of declarations, then I do not believe that the period after 1945 is unique. John Frederick Maurice’s classic study on declarations of war between 1700 and 1870 found that only ten of 117 wars were declared by European powers, counting only those in which declarations preceded war as being declared. Alexander Hamilton noted the same trend in Federalist #25, which was that “the ceremony of a formal denunciation of war has of late fallen into disuse.” And, in U.S. foreign policy, more hostilities before 1945 occurred without declarations of war than included declarations.

Ronan Fitzgerald September 5, 2013 at 7:50 am

‘Has a racial bias’ would be a norm not a set rule

Ronan Fitzgerald September 5, 2013 at 7:53 am

Although ‘necessary condition’s might be poorly worded, Ill grant you that. Think youre reading a little unfairly tbh, although you’re points are certainly valid (everyone wins!)

Mark September 5, 2013 at 1:32 pm

I don’t think it’s much of a stretch to say geopolitical order post-WW2 is vastly different post-WW2. The UN-sanctioned intervention in Korea, for example, suggests a model where bilateral declarations of war are not just “out of fashion” but totally obsolete. If the legitimacy of hostilities rests with an international body, then nation-to-nation declarations are not legitimate. It also suggests states could justify hostilities via other international bodies or treaties.

As for US foreign policy pre-1945, you’re probably correct, but I wonder what’s counted as a “foreign war” – the various Indian Wars, for example.

Ronan Fitzgerald September 4, 2013 at 5:31 pm

I asked this on another thread and didnt get an answer so will try again out of curiosity:

What effect has the delegation of authority (from Congress to the executive) had, does anyone know? ie have there been more military interventions, more interventions of a specific type etc

Neville Morley September 5, 2013 at 11:04 am

It’s only a minor part of your argument, but I think you give far too much credit to the Romans; yes, they do the things you describe when embarking on hostilities, but the indications are that in most if not all cases the demands are framed in terms which are expected to be rejected, as amounting more or less to complete capitulation. It is an important part of their political ideology that they are never the aggressors but only ever respond to ‘unreasonable’ rejection of their attempts at finding a peaceful solution – but they don’t allow that to stop them attacking people.

It is possible that these actions are partly intended for the neutral audience, to demonstrate the Romans’ respect for (and support from) the gods; they are rather more directed at other members of the Roman elite – and that is concerned far less with ensuring that the causes of war are just and sufficient than with attempts at keeping the ambitions of individuals in check.

Eric September 5, 2013 at 12:07 pm

Sorry. Answered below.

Tanisha Fazal September 5, 2013 at 11:42 am

In a paper I published last year, I tried to test a version of the racial hypothesis you suggest on declarations of war, but did not find much support for it. See: http://www.tandfonline.com/doi/pdf/10.1080/09636412.2012.734227.

Eric September 5, 2013 at 12:21 pm

Thanks for writing. I really enjoyed your piece, in particular because I think we agree that a different kind of attention besides the war powers debate is due to declarations. That being said, I thought you found a stronger relationship in the 19th-century that did not carry over to the 20th? Also, have you coded declarations based on ‘type’ in IL? In other words, did the declarations precede war, contain conditions, and so on?

Eric September 5, 2013 at 11:58 am

Absolutely, and absolutely. I find political ideology (or for internal consumption) more likely than neutral audiences in the period in which wars were most often declared though, but as you point out, both explanations are consistent with the record.

The reason I concentrate on the Roman model is that it is used in later work, such as Grotius, when conditional declarations enter into IL thinking. Grotius is drawing on Cicero, for example, in his discussion. One additional note is that one of the neat features of the Roman experience may be (emphasis on may, the evidence as I understand it is limited) that the Roman ceremonial practice largely fell apart once Rome expanded outside of its immediate region, fighting against communities that did not have fetiale cults (through which the ceremony of declaring took place).

Vijay Phulwani September 5, 2013 at 4:06 pm

The evidence is very limited. In fact, there is no clear evidence that the Romans ever threw a spear over a border as a declaration of war. Our earliest sources come from the Augustan period, where the spear throwing ritual took place at the Campus Martius in Rome itself. The story that the spear had once been thrown over the border was used by later authors to explain this ritual, but we have no way to confirm this. Thomas Wiedemann has even argued that spear throwing ritual was invented by Augustus (who was a fetial priest) to legitimate his civil war with Marc Anthony. So your titular example might not be well-chosen.

The larger point is that giving reasoned conditions for how the use of force might be avoided is only one of the things declarations of war have historically been used for. As Neville Morley pointed out above, the Romans used demands and declarations to incite other states to declaring war on them, and Bismarck did the same thing, if I recall correctly. Nor is there reason to think that the Romans always used fetiales to declare war even in the heyday of the jus fetiales (see J.W. Rich).

Declarations of war are basically tools. There is no one normatively authoritative way to use them. They don’t have (and never have had) a single, overriding purpose.

Eric September 5, 2013 at 4:43 pm

Your right about the blog post. A longer version would have pointed out that the blood stained spear is likely (there simply is not enough evidence) a myth. The paper makes this point, and I thought I had included the work “mythological” in the post. Regarding Rich though, there is (a) no consensus that he is right, and (b) even if he is right about the role of the fetiales, there may be conditional declarations produced by other officers of the republic. Regardless, its certainly the case that Cicero claims that reasoned, conditional statements are important: this is the specific argument I am drawing on.

Again though, the claim is that reasoned conditional statements are morally important. Not because historically they were important; instead I stipulate that they are important because they meet demands related to public reason. Showing its roots in international law, as well as in Cicero, is largely an attempt to justify the claim that declarations of war serve functions beyond those described in the war powers debate. Put differently, my label of declarations of war for reasoned, conditional statements is not arbitrary because their is a tradition, clearly including at least Livy, that defines them this way. Livy’s accuracy is really not an issue here.

Eric September 5, 2013 at 4:55 pm

I should add though that I am not competent to judge between Rich and his critics.

Neville Morley September 6, 2013 at 5:50 am

Many thanks for such a full response. You’re absolutely right that the idea of Roman ultimata and so-called ‘defensive imperialism’ (as opposed to the messy reality) is important for early modern political thought, and that at the very least it indicates a much broader and richer conception of the functions of declaration of war than is recognised in the conventional debate. I certainly need to find time to read your full article – and in particular to check whether you engage there with Thucydides, where the process of deliberations about war, ultimata and the importance of reasoned conditions are all crucial themes, explored at length. Something which is of course ignored in certain IR readings that focus entirely on the ‘might is right’ theme of the Melian Dialogue…

Robyn McIntyre September 5, 2013 at 7:24 pm

The email version of this article arrived as a text interpretation of the html. In other words, garbled.

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