JURIST Guest Columnist Brian J. Foley of Florida Coastal School of Law says that critical decisions about going to war should be constrained by national and international process that obliges empowering authorities to ask serious questions and requires leaders to demonstrate the necessity of using force…
Thought exercise: You’re “The Decider.” Someone asks you whether the U.S. should attack Iran, to prevent that country from building an atomic bomb. How would you decide?
You’d probably ask some questions: war is serious business. You might make proponents of war meet a substantial burden of proof that Iran has a weapons program; that the program is headed toward a bomb; and that Iran would actually use the bomb — that, in short, Iran poses a serious threat. You might demand estimates of the likely costs and how to keep them as low as possible, and weigh these costs against other uses for the money, lives, materiel and energy needed for war.
If you asked these questions, you’d be far ahead of the real “Deciders,” the U.N. Security Council and the U.S. Congress. Although both bodies are charged under international and U.S. law respectively with deciding whether war is an appropriate way to address Iran’s alleged efforts to develop a nuclear bomb, neither body is required to ask these sorts of questions. Both failed to ask them before the 2003 invasion of Iraq (which the U.N. did not authorize, but has not condemned), and the result was a war that most of the world now regards as unnecessary, a war based on misinformation that could have been revealed as such before the bombs were ever dropped. Indeed, two years ago, two major newspapers, the New York Times and the Washington Post issued mea culpas for failing to ask hardnosed questions. But Congress has not issued any apologies for failing to deliberate, for surrendering its constitutional power to decide whether to go to war to the president several months before this wasteful, counterproductive war was launched.
Congress appears equally unlikely to ask tough-minded questions this time, despite the fact that the President has essentially threatened a first-strike with nuclear weapons against Iran. Nor does the U.N. Security Council appear ready to probe the Administration’s case with any rigor.
It’s a pity. War should no longer be treated as a sport of kings, an ad hoc decision more about whether countries will join coalitions than about evidence and a serious search for intelligent alternatives. War is too deadly, too costly; the risk of escalation, the spread of conflict, refugee crises, environmental harm, economic damage, and terrorist blowback against the public is too high. Although the existing “law of war” (that is, the law that purportedly takes effect once war starts) might seek to protect against many such harms, those laws are too little, too late: many damages are foreordained once war begins. It’s time for Congress and the U.N. to create processes to ensure that the searching questions are asked before any bombs are dropped.
This lack of process is rarely discussed by politicians or jurists. It was, however, raised recently, albeit obliquely, by U.N. Secretary-General Kofi Annan, in his proposals for UN reform. In his 2005 report, In Larger Freedom: Towards Development, Security and Human Rights for All, the Secretary-General urged the Security Council to adopt a resolution where the Council could “come to a common view on how to weigh the seriousness of the threat; the proper purpose of the proposed military action; whether means short of the use of force might plausibly succeed in stopping the threat; whether the military option is proportional to the threat at hand; and whether there is a reasonable chance of success.” (In Larger Freedom, Chapter 3, “Freedom From Fear,” para. 126) So far, however, no such resolution has been adopted.
In addition to the points the Secretary-General raised, decisionmakers should be required to identify specifically the harms that would likely result from military action, and seek ways to limit them. For example, decisionmakers should be required to investigate the likely military and civilian casualties; refugee crises; the danger that the targeted country (or forces allied with it) might retaliate; the possibility that the conflict might spill over the target nation’s borders; likely environmental harm and likely economic impacts, especially on energy markets.
Congress, too, should step up. The Constitution gives Congress the power to declare war, and the power of the purse. With the Bush policy of preemptive war — a war we initiate when we’re not directly under attack — Congress has the duty to ensure that any use of military force is undertaken with seriousness and responsibility. The White House announced this policy almost four years ago and recently reaffirmed it; the time is ripe for Congress to reassert itself by creating a process to test the need for such wars.
Preventing unnecessary wars is an important goal of the U.N. Charter and the U.S. Constitution. Recent history has shown that it’s hard to achieve this goal, however, when the White House is bent on war. The crisis regarding Iran presents the U.N. and Congress with the opportunity to create a process to guide the decision of whether to go to war, a process that helps ensure that any resort to force is truly the last resort, truly necessary, and that the attendant destruction and disorder are as limited as possible. Failure to create such a process is a mistake we cannot afford to repeat.
Brian J. Foley is an assistant professor at Florida Coastal School of Law. Email him at firstname.lastname@example.org. Visit his website at http://www.brianjfoley.com