The Legal Power to Launch War: Who Decides?

337 Pages·2018·5.447 MB·English

by  Michael Head, Kristian Boehringer

THE LEGAL POWER TO
LAUNCH WAR
WHO DECIDES?
Michael Head and Kristian Boehringer
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 inter-
rogating the power to commence armed conflict and explores the reasons why
these propositions have failed to win support within the political establishment.
Michael Head is a professor of law at Western Sydney University, Australia.
Kristian Boehringer is a senior lecturer in business law at Torrens University,
Australia.

The Legal Power to
Launch War
Who Decides?
Michael Head and
Kristian Boehringer
First published 2019
by Routledge
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and by Routledge
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Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2019 Michael Head and Kristian Boehringer
The right of Michael Head and Kristian Boehringer to be identified
as authors of this work has been asserted by them in accordance with
sections 77 and 78 of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced
or utilised in any form or by any electronic, mechanical, or other
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Trademark notice: Product or corporate names may be trademarks
or registered trademarks, and are used only for identification and
explanation without intent to infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Names: Head, Michael, 1952- | Boehringer, Kristian.
Title: The legal power to launch war : who decides? / by Michael Head
and Kristian Boehringer.
Description: Abingdon, Oxon ; New York, NY : Routledge, 2019. |
Includes bibliographical references and index.
Identifiers: LCCN 2018036710| ISBN 9781138292086 (hbk) |
ISBN 9781351965576 (adobe) | ISBN 9781351965552
(mobipocket) | ISBN 9781351965569 (epub)
Subjects: LCSH: War and emergency powers. | War, Declaration of. |
War and emergency powers—United States. | War and emergency
powers—Great Britain. | War and emergency powers—Australia.
Classification: LCC K3344 .H435 2019 | DDC 341.6/2—dc23
LC record available at https://lccn.loc.gov/2018036710
ISBN: 978-1-138-29208-6 (hbk)
ISBN: 978-1-315-26494-3 (ebk)
Typeset in Galliard
by Swales & Willis Ltd, Exeter, Devon, UK
Contents
Preface vi
Introduction: what is at stake? 1
1 War and democracy 24
2 Vietnam, Iraq and the ‘war on terror’: deception,
war propaganda and legislative approval 46
3 Increasingly unrestrained war powers in the United
States: from Truman to Trump 65
4 Britain’s royal war prerogative reasserted and reinforced 108
5 From Whitehall to the White House: the war power
in Australia—from legal subordination to political
subservience 148
6 The failure of reform proposals: an Australian case study 199
7 War and dissent: sweeping domestic powers 209
8 Contemporary preparations for wartime measures 231
9 Martial law, official lawlessness and judicial complicity 247
10 Can international law stop wars of aggression? 267
11 Would referenda provide any alternative? 283
12 Conclusions 303
Index 323
Preface
In war, truth is the first casualty.
Aeschylus, Greek tragic dramatist (525–456 bc)
As this book was being written, the clouds of trade war and war were looming.
The United States was initiating tariff and investment measures against its rivals in
Europe and China, proxy wars were raging in the Middle East, and geo-strategic
flashpoints were smouldering in Korea, the Taiwan Strait, the South China Sea
and elsewhere.
Under these conditions, there is an urgency to the two main questions we ask
in this book: who holds the legal power to initiate wars; and who should have
those powers? This volume is focused on three countries that have been in the
forefront of most of the wars of the 20th and 21st centuries: the United States,
Britain and Australia. Similar questions are posed internationally, however.
These questions have huge implications not only for the risk to human civi-
lisation in the event of another world war, but also for fundamental democratic
rights domestically, which are always among the first casualties of war, together
with truth.
The conclusion we draw is that, despite the status of these three countries as
democracies, the war powers are increasingly controlled by executive cabals, act-
ing on behalf of corporate, military-intelligence and political establishments. This
is not only an affront to democracy; it also escalates the danger of a third world
war between major global powers battling for supremacy.
None of the numerous schemes proposed by scholars and commentators
to prevent executive governments from taking their populations to war, via
parliamentary or congressional votes or referenda, have proven feasible or
effective. While referenda could provide a mechanism for popular hostility to
war to be brought to bear, the forces driving toward war are deeply rooted
in the socio-economic structure and social relations of the corporate profit
system itself.
A common problem with previous works on war-making and related pow-
ers is that they take as their starting point the continuation of the existing
economic, political and legal order, and they discuss how to accommodate
Preface vii
the resort to war powers. They barely examine the actual measures, including
propaganda, provocations and deception, that ruling elites adopt to trigger and
prosecute wars. Nor do they probe the underlying implications for democracy.
We argue that, to prevent war, what is required is an end to the dictatorship
of finance capital and the economic system that is the fundamental cause of mili-
tarism. That means abolishing the nation-state system as a whole, establishing
instead a world based on equality and scientific planning. This would make pos-
sible the rational, planned development of global resources and, on this basis, the
eradication of poverty and the raising of human culture to new heights that will
render war unnecessary and obsolete.
For Michael Head, this book forms part of a four-part contribution. In
Emergency Powers in Theory and Practice: The Long Shadow of Carl Schmitt
(Ashgate, 2016), he examined the increasing use of emergency-type powers, as
well as the promotion and even rehabilitation of Carl Schmitt, the best-known
champion of ‘exceptional’ dictatorial powers during the post-1919 Weimer
Republic and subsequent Nazi regime in Germany. In Crimes against the State:
From Treason to Terrorism (Ashgate, 2011), he reviewed the range of criminal
offences that governments use to protect themselves against perceived political or
existential threats—subversion, rebellion, treason, mutiny, espionage, sedition,
terrorism, riot and unlawful assembly. Previous writings, such as Calling out the
Troops (The Federation Press, 2009), analysed measures to call out the military
domestically to suppress civil unrest.
Michael Head’s thanks, as always, go to his darling wife, Mary, and their
four remaining children, Clayton, Tom, Daniel and Kathleen, for their under-
standing and forbearance during the researching and writing of this book. He
is also grateful to his wonderful colleagues and students at Western Sydney
University for their encouragement and intellectual insights, and to Alison
Kirk, the wise and helpful law and legal studies publisher at Routledge, for her
support and assistance.
Kristian Boehringer would like to express his deepest gratitude to his family
for their support and sacrifice, and to Michael Head for his considered criticism
and uncompromising motivation. He would like to express his appreciation to
Dr Zelko Livaic for his lessons, his time and his endless compassion.
Sydney
4 July 2018

Introduction
What is at stake?
A decision to go to war, whether by formal declaration or not, is probably
the most grave and potentially catastrophic decision a government can take.
Millions of lives may be lost as a result, both combatant and civilian, not to
speak of the devastating consequences for the lives of many millions more peo-
ple who are likely to lose loved ones or be forced to flee their homes and
countries. The future of human civilisation itself could be at stake.
World War II ended with two nuclear bombings by the United States on the
cities of Hiroshima and Nagasaki, killing some 200,000 people, mostly women
and children. Another world war would almost certainly involve far more power-
ful nuclear weapons, endangering the lives of billions of people and the planet’s
entire environment (Starr 2015).
More than 17 million people were killed during World War I, including
7 million civilians, and 20 million were wounded (Ellis 2001: 269–70). An esti-
mated 80 million perished in World War II, counting those killed by war-related
disease and famine, with the civilian death toll reaching 55 million (Somerville
2011: 5). Between 1955 and 1975, up to 3 million died in the Vietnam War
(Lewy 1978: 442–53). Some half a million Iraqis died between 2003 and 2010
as a result of the US invasion of that country (Hagopian et al. 2013).
From ‘coming to the aid of little Belgium’ (World War I) to ‘weapons of mass
destruction’ (the conquest of Iraq), each of these wars was instigated by lies,
designed to overcome popular anti-war sentiment and foment nationalism. The
longer these wars went on, with the human cost piling up, the more the popular
opposition grew to them and the more onerous the means, such as conscription,
imposed to fight them.
Despite the human costs involved, the power to go to war is exercised undem-
ocratically, by ‘the executive’, with virtually no public, legislative or judicial
scrutiny or accountability. Whether is it cloaked in the language of ‘prerogative’,
‘presidential’ or ‘executive’ powers, the legal authority to deploy armed forces for
warfare is held in the hands of small cabals. The historical record shows that no
parliamentary or congressional vote is necessary, let alone a public plebiscite, and
no domestic court would uphold a legal challenge to a decision to launch a war.
In the three countries examined in this study, the United States, Britain and
Australia, various efforts have been made to introduce forms of legislative control