The Legal Power to Launch War : Who Decides?

The issue of who has the power to declare war or authorise military action in a democracy has become a major legal and political issue, internationally, and is set to become even more pertinent in the immediate future, particularly in the wake of military action in Syria, ongoing wars in the Middle East, and tense discussions between the United States and its allies, and Russia and China. This book comparatively examines the executive and prerogative powers to declare war or launch military action, focusing primarily on the United States, Britain and Australia. It explores key legal and constitutional questions, including: who currently has the power/authority to declare war? who currently has the power to launch military action without formally declaring war? how, if at all, can those powers be controlled, legally or politically? what are the domestic legal consequences of going to war? In addition to probing the extensive domestic legal consequences of going to war, the book also reviews various proposals that have been advanced for interrogating the power to commence armed conflict, and explores the reasons why these propositions have failed to win support within the political establishment. Cover Half Title Title Page Copyright Page Table of Contents Preface Introduction: what is at stake? Why this book? Intensifying war preparations Rising military spending Warnings of another world war What would a nuclear war look like? Some fundamental problems of analysis Common political and socio-economic assumptions References Chapter 1: War and democracy Who actually exercises the power? Is democracy compatible with war? The driving forces of war A new period of contested hegemony Escalating US-led wars Domestic factors Legislatures as a legitimising factor in war-making Parliamentary involvement in promoting war Britain’s historical record: overturning democratic constraints References Chapter 2: Vietnam, Iraq and the ‘war on terror’: deception, war propaganda and legislative approval Vietnam and the Pentagon Papers Iraq and the Chilcot Report Deception and war propaganda Broader conclusions about the ‘war on terror’ Implications for democracy References Chapter 3: Increasingly unrestrained war powers in the United States: from Truman to Trump US post-war hegemony and the soaring profits of the military-industrial complex Constitutional conflicts Formal declarations of war Conclusion References Chapter 4: Britain’s royal war prerogative reasserted and reinforced Syria 2018: executive war powers reinforced Parliament’s role brushed aside Exactly who holds the war powers? Vast royal prerogative powers protected A contrary view? The monarchical powers, their evolutiom and shifting justifications The 20th-century record War Powers Act proposal abandoned 2016 The revealing failure of ‘reform’ proposals The voice of the political and military establishment A cosmetic proposal Renewed calls for a War Powers Act ‘Non-justiciability’ and other legal devices: the complicity of the courts References Chapter 5: From Whitehall to the White House: the war power in Australia—from legal subordination to political subservience Introduction: idiosyncrasies of the Australian war power Australian subordination to Britain Brief independent exercise of the war power The alliance between Australia and the United States, and the consequences for the Australian exercise of the war power The Australian Constitution, federal legislation and the war power The development and exercise of the war power in Australia: from last shillings and melancholy duty, to coalitions of the willing and beyond The governor-general as a check on war-making power? Summing up Australian war powers Domestic implications of unfettered executive war power: a nascent police state and the potential for continual warfare References Chapter 6: The failure of reform proposals: an Australian case study Australian reform proposals The autocratic tradition: the executive war power prerogative The representative tradition: proposals for parliamentary authorisation Plebiscite? References Chapter 7: War and dissent: sweeping domestic powers Internal war-related powers in the United States Authoritarian wartime powers in Britain Repressive wartime laws in Australia References Chapter 8: Contemporary preparations for wartime measures The Pentagon’s Law of War Manual Military callout powers References Chapter 9: Martial law, official lawlessness and judicial complicity Martial law Martial law in Ireland Indemnities Official lawlessness Blocking judicial review: three case studies References Chapter 10: Can international law stop wars of aggression? The UN Charter The illegal 2003 invasion of Iraq ‘Pre-emptive defence’, from Bush to Trump Unlawful US attacks on Syria and Afghanistan in 2017 The International Criminal Court and the invasion of Iraq References Chapter 11: Would referenda provide any alternative? Enlightenment visions World War I experiences After the ‘Great War’ The 1928 Kellogg–Briand Pact The Ludlow Amendment ‘crusade’ Referenda and the Marxist movement The 1990–91 Gulf War Conclusion References Chapter 12: Conclusions What is at stake? Undemocratic war-making powers War and democracy Who really decides on war? Intensifying war preparations Rising military spending Warnings of another world war What would a nuclear war look like? Some fundamental problems of analysis Common political and socio-economic assumptions The driving forces of world wars A new period of contested hegemony Escalating US-led wars Legislatures as a legitimising factor in war-making War and deception Broader conclusions about the ‘war on terror’ Bitter lessons from the Iraq War Increasingly unrestrained war powers in the United States Britain’s royal war prerogative reasserted The war power in Australia: from legal subordination to political subservience Limiting the powers to go war? War and dissent: sweeping domestic powers Contemporary preparations for wartime measures Official lawlessness and judicial complicity International law cannot stop wars of aggression Referenda would not, by themselves, prevent wars Overall conclusion Index