On a European War Powers Act 

In most democracies, war is declared by parliament. Today, however, many European governments engage in war-like actions but without formally declaring war and in some cases without consulting parliament. A similar situation existed in the United States in the 1960s and early 1970s, when the US government heavily engaged American forces in Vietnam and Latin America without consulting Congress. Congress reacted by adopting the so-called War Powers Act (WPA), which curbed the powers of the President. This article reflects on the functions of the US War Powers Act and assesses the utility of such an instrument in the context of the European Union. Taking the long view (post-Convention and post-enlargement), I argue that a 'European' War Powers Act could be a useful political tool for the EU. Its main function would not be to curb the executive but to empower the European Parliament.

Undeclared Wars

It could be a question in a quiz: who in or which one of the European institutions has the power to declare war? The Commission? The Council? The High Representative? The European Parliament? The answer is none of them. The European Union cannot formally declare war as a sovereign state can. The EU can issue resolutions and take up a common position on the matter, but that is about it. In democracies, declaring war is something parliaments usually do. The executive branch of a state is generally not entrusted with this prerogative. The reasoning seems to be that war is too important to be left to a single Cabinet. There are three exceptions to that rule among the member states of the European Union: the United Kingdom, Sweden and Belgium. The British Prime Minister and the Swedish and Belgian Governments are the only three executive bodies entrusted with the prerogative to declare war and make peace, without referring the issue to the national parliament.

By the latter half of the 20th century, however, declaring war fell into disuse and the concept of crisis and the practice of crisis management entered the scene. 'Crisis' has become a political and social condition in international politics 'jenseits von Krieg und Frieden'. Even the 'war on terrorism' is largely understood as a figure of speech by European states rather than a formal and legal circumstance. International crisis management has come to represent all types of operations - with the exception of humanitarian aid in case of a disaster - in which the use of force cannot be excluded. This is partly a natural consequence of the nature of the crises we currently face: they are chaotic and unpredictable and the ensuing violence can easily escalate beyond control. In response, European governments, when contemplating participation in an international crisis management operation, insist on robust rules of engagement and a flexible mandate that can be adapted to a changing situation on the ground. They want to be ready to deal with any type of contingency arising across the full 'spectrum of violence'.

The governments of many European countries are obliged to seek the consent of the national parliament before deploying armed forces into a crisis management operation. This is either a formal constitutional obligation or a political habit, which ensures that the Government has garnered sufficient support for its policy. France, Spain and the United Kingdom are exceptions to this rule: the prerogative of the Spanish and French Presidents and the British Prime Minister is so wide that they have the power - so long as war is not formally declared - to commit their armed forces in an international crisis management operation without consulting the national parliament. They can do so on the basis of deliberations with a small circle of direct advisers. The power of the purse, usually an important indirect way for Parliament to exert influence, is in these three cases cleverly circumvented. The executive has access to proced ures to secure funding for these deployments either outside the budget, or to amend the current budget without seeking prior parliamentary approval.

Why are national governments so reluctant to declare war? The situation of fighting wars but not declaring them has resulted in some strange scenes on television. Some will remember the image of their Minister of Defence (or Foreign Affairs), twisting and bending in front of a camera attempting to justify the country's involvement in war-like action, but avoiding the use of the 'w' word. Instead of war, the preferred notions were 'hostile activities', 'forward defence', 'integrated defence', 'humanitarian action', etc. The reasons not to declare war are crystal clear: Government does not want to involve Parliament in the decision-making process. If the national parliaments would be formally involved, the dynamic of the (intergovernmental) political process would change dramatically. The executive would lose its flexibility and decisiveness and the effectiveness of the coalition and the outcome of the operation might be degraded.

This argument seems valid, but the consequences of not declaring war but nevertheless engaging in war-like actions are severe. War and the use of force are exceptional. When war is declared, an exceptional situation is consciously created, not only from a legal point of view, but also from a moral and social point of view. Not declaring war leads to the political and cultural normalisation of war and the use of force. That is, 'war-like actions' (as dreadful as they are or can be) become part of what we consider normal. If war-like action is considered normal, our political, cultural, social and moral schemes of norms and values - schemes that guide us through our day-to-day activities - are enormously extended. 'Normalising' the exception means perverting normalcy. Moreover, war used to be conceived as the ultimate zero-sum game (with a single loser and a single victor). Crisis management is increasingly becoming a non-zero sum game, a game in which both sides lose. We 'lose' the crisis because we are unable to make war and the intense use of force becomes part of our normality. Fighting a war without collateral damage is impossible, and the collateral damage usually caused by extent war-like action should never become acceptable in 'normal' times.

The United States War Powers Act of 1973

Before 1973, the US President could deploy American forces without seeking the consent of Congress. As long as war was not formally declared, he virtually had a free hand, and in order to retain the effectiveness of the executive branch, US Presidents made sure that war was never declared. Under the War Powers Act, the President is empowered to 'introduce United States Armed Forces into hostilities' without prior consent of Congress, but is prohibited from committing forces beyond 60 days without Congressional approval. Authorisation can be made in many forms such as a temporary waiver of the Act via a Declaration of War. The President is also allowed under very certain conditions an extension of an additional 30 days to actually effect movement of troops or to ensure their safety during removal from the combat zone.

The purpose of the War Powers Act is to 'insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities (...) and to the continued use of such forces in hostilities or in such situations'. The WPA obliges the President to consult with Congress on a regular basis 'before introducing United States Armed Forces into hostilities' and when the armed forces 'have been removed from such situations'. During the deployment the President is obliged to report to Congress 'on the status of such hostilities or situation as well as on the scope and duration of such hostilities, but in no event shall he report to the Congress less often than once every six m onths.'

The use of the War Powers Act has had three significant effects that I believe are of great democratic value. First, the WPA codifies a constitutional relation between the President and Congress in this specific policy domain. It lays down the rules and responsibilities of both President and Congress. This enhances the decisiveness of the President and thus the responsiveness of the American political system. Second, it enhances parliamentary control over the executive branch of government. Congress is ensured information on a regular basis during the operation. Third, if intelligently used, it serves as a consensus-building engine. An unwritten rule in a democracy is that the executive branch needs to respect the legislative. If blatant disrespect is shown, life will become miserable for the executive and the effectiveness of any administration will greatly diminish. George Bush Sr. showed that he understood this rule and went to Congress before the Gulf War actually started, and obtained firm backing from Congress before hostilities commenced.

Should a European War Powers Act be introduced?

The European Union is a (political) union of states, whereas the US is a sovereign state. The EU lacks the legal personality of the US and it does not have a standing army. The two cases are nevertheless comparable because they are confronted with a similar situation: armed forces are participating in 'undeclared' wars and parliaments in some countries are being circumvented in decisions concerning the deployment of armed forces.

A European War Powers Act could serve three purposes. Firstly, it would empower the European Parliament, acting on behalf of EU citizenry and all EU member states, with the right to stop a crisis management operation after 60 days that is conceived and executed by a number of EU Member States using the mechanism of 'enhanced cooperation'. A European WPA would thus serve as a democratic check on behalf of all EU member states. Secondly, introducing armed forces into hostilities is in most European states the prerogative of the executive, declaring war is not. If a situation exists in which soldiers are introduced into hostilities and war is not declared, the European Parliament should be involved. A European War Powers Act would lay down the obligation for the executive, after having deployed soldiers to a crisis, to inform the European Parliament on a regular basis during the operation. As such it would serve as an instrument structuring the relation between the executive and the EP and consequently have an ordering effect on an inherently messy and ad hoc political process. Thirdly, a European War Powers Act could empower the European Parliament to evaluate each operation in a systematic and consistent fashion (ex post facto). This would not take away competencies from national parliaments, but would create and attribute a new one. A European War Powers Act, instituted and used as proposed here, would enable the European Parliament to correct and re-orient a policy line, not in a direct and forward-looking manner, but indirectly and based on hindsight. And that is democracy too.