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Taking War Seriously: a Model for Constitutional Constraints on the Use of Force in Compliance with International Law Craig Martin

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Taking War Seriously: a Model for Constitutional Constraints on the Use of Force in Compliance with International Law Craig Martin Brooklyn Law Review Volume 76 | Issue 2 Article 5 2010 Taking War Seriously: A Model for Constitutional Constraints on the Use of Force in Compliance with International Law Craig Martin Follow this and additional works at: https://brooklynworks.brooklaw.edu/blr Recommended Citation Craig Martin, Taking War Seriously: A Model for Constitutional Constraints on the Use of Force in Compliance with International Law, 76 Brook. L. Rev. (2011). Available at: https://brooklynworks.brooklaw.edu/blr/vol76/iss2/5 This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Law Review by an authorized editor of BrooklynWorks. Taking War Seriously A MODEL FOR CONSTITUTIONAL CONSTRAINTS ON THE USE OF FORCE IN COMPLIANCE WITH INTERNATIONAL LAW Craig Martin† I. INTRODUCTION A universal and perpetual peace, it is to be feared, is in the catalogue of events, which will never exist but in the imaginations of visionary philosophers, or in the breasts of benevolent enthusiasts. It is still however true, that war contains so much folly, as well as wickedness, that much is to be hoped from the progress of reason; and if any thing is be hoped, every thing ought to be tried.1 War. Few phenomena have caused as much human pain, suffering, and death through the ages than the organized armed conflict between tribes, realms, peoples, nations, and nation-states. And unlike natural disasters, this misery is of course attributable entirely to people and the systems we have created. We have struggled with the problem of trying to limit war from almost as far back as the beginning of recorded history. We have come up with theories about the causes of war, and we have developed legal systems to both constrain the recourse to war (jus ad bellum) and govern the conduct of † Visiting Assistant Professor, University of Baltimore School of Law. This article is an abridged and revised version of one segment of a dissertation for an S.J.D. at the University of Pennsylvania Law School. I would like to thank the members of my committee, Eric Feldman, Bill Burke-White, and Tom Ginsburg for all their invaluable assistance and guidance in my work on the dissertation. There are many other people who have provided help in various ways at different stages of the development of this part of the project, and in particular I would like to thank Anita Allen, Eyal Benvenisti, Lois Chiang, Sujit Choudhry, Benson Cowan, Michael Doyle, Diane Desierto, Karen Knop, Mattias Kumm, Brian Langille, Gideon Parchomovsky, Deborah Pearlstein, and Fernando Téson. I also had the benefit of presenting, and obtaining feedback on, various versions of the article, and would like to thank in particular Claire Finkelstein for the invitation to present it at the Foundations of International Law Conference at the University of Pennsylvania, and the editors of the Brooklyn Law Review for the opportunity to present it as part of their author spotlight series. Many thanks also to colleagues who provided invaluable feedback at workshops at the University of Pennsylvania Law School and the University of Baltimore School of Law. 1 James Madison, Universal Peace, NAT’L GAZETTE (Phila.), Feb. 2, 1792. 611 612 BROOKLYN LAW REVIEW [Vol. 76:2 hostilities when armed forces clash (jus in bello).2 In the twentieth century we developed an international legal framework for the central purpose of promoting greater peace and security in the world.3 This, combined with the spread of constitutional democracy, and the observation that democracies virtually never wage war among themselves, has bolstered the once unlikely idea that we might achieve a more sustained peace in the world.4 Yet, despite these developments the world remains wracked by the scourge of war, and liberal democracies themselves continue to wage war. And notwithstanding the horrors and costs that attend this human practice, recourse to war is subject to less legal constraint than most other forms of collective activity. This study, in the spirit of James Madison’s plea that we ought to try everything to reduce the incidence of war, advances an argument for how liberal democracies might develop more effective legal constraints on the recourse to war. More specifically, it develops a constitutional model (the “Model”)5 for improved control over the decision to use armed force, with the aims of enhancing compliance with the international law regime governing the recourse to war, and of engaging the core functions of democratic institutions for the purposes of making the domestic decision-making process less prone to the failures that can lead to irrational or illegitimate use of force. It does so based on the well-established understanding that the causes of war are to be found not only in the structure and operation of the international system, but also at the domestic level, in both the structure of states and in 2 The laws of war are separated into two quite separate regimes. The first, jus ad bellum, comprises the laws that govern the resort to war or initiation of the use of armed force—when a state can legally go to war. The second, jus in bello (now often referred to as the laws of international armed conflict, or international humanitarian law), comprises the laws that govern the conduct of armed forces in the course of armed conflict—how armed forces may legitimately wage war. These two regimes are distinct, such that a state may commence an illegal war but its forces may nonetheless conduct themselves legally throughout the war. Conversely, the forces of a state may commence fighting for legitimate reasons but engage in acts that are in violation of the jus in bello. 3 The central purpose of the United Nations system is the maintenance of peace and security. U.N. Charter art. 1. For a discussion of the historical development of the modern jus ad bellum system, see infra Part III.C. 4 An idea developed most famously by Kant in the eighteenth century: IMMANUEL KANT, PERPETUAL PEACE: A PHILOSOPHICAL SKETCH (1795), reprinted in KANT: POLITICAL WRITINGS 93 (H.S. Reiss ed., H.B. Nisbett trans., 2d ed. 1991). The ideas of Kant in Perpetual Peace are discussed infra Parts II.B-C. 5 See infra Part V. 2011] TAKING WAR SERIOUSLY 613 the systematic failures in the decision-making process of both individuals and small-groups. If the causes of war operate at both the domestic and the international level, it follows that the legal constraints designed to limit the use of force should engage those causes at both levels. The Model also builds on the insight that until the end of the eighteenth century there was a clearer understanding that legal limits had to operate at both the international and domestic levels; and the observation that in the spread and development of constitutional democracy over the last half- century, there has been a tendency to ignore the need for domestic legal constraints on war and overlook the relationship between the domestic and the international systems when it comes to governing armed conflict. Few democracies have constitutional controls over the decision to use force that effectively constrain unilateral executive authority, and fewer still have any constitutional incorporation of international law principles on the use of force. What is more, this failure to implement the international law on the use of force within domestic legal systems is anomalous, in stark contrast to the increasing trend towards domestic implementation of other international law regimes, from human rights to international trade and intellectual property rights. The Model is designed to achieve its objectives through the operation of three separate but mutually reinforcing elements—three aspects of a constitutional provision. The first is a process-based constitutional incorporation of the prevailing principles of international law that limit the use of armed force (that is, the principles of the jus ad bellum regime). It is process-based in the sense that it only requires decision makers to sufficiently and demonstrably consider the legality of proposed action under the international law principles, in contrast to a substantive incorporation model which would oblige decision makers to comply with those provisions. This aspect of the Model does aim to increase compliance with the international law directly, though it will do so in part by also engaging domestic causes of war. The second element is a provision that requires legislative approval of decisions to use armed force rising above a specified de minimis level, thereby increasing the separation of powers with respect to the crucial decision to engage in armed conflict. This element would bring the key functions of representative parliaments to bear on that decision-making process, not only engaging the domestic causes of war, but reinforcing the traction of the first element in 614 BROOKLYN LAW REVIEW [Vol. 76:2 enhancing compliance with international law. The third element establishes jurisdiction and standing for a limited power of judicial review over the decision-making process, to extend the separation of powers to the third branch of government, and to help ensure greater adherence to the overall process. All three elements of the Model are designed to engage, in a mutually reinforcing manner, the causes of war that operate at all three levels, within the international system and the domestic structures and institutions of states. The case for this Model is made by employing a range of perspectives on the causes of war from international relations theory and political philosophy, a review of the historical development of legal constraints on war, international law compliance theory, and constitutional law ideas about the operation of constitutions, the rule of law, and the role of legislatures and the judiciary in democratic states.
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