Time has come for ‘European War Powers’ Act

Date: 19/06/03

By Marc Houben

IN MOST democracies, war is declared by parliament. Today, however, many European governments engage in warlike actions 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 government engaged troops in Vietnam and Latin America without consulting Congress. But the Congress reacted by adopting the so-called War Powers Act (WPA), which curbed the powers of the president.

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.

It could be a question in a quiz: which one of the EU 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. It can issue resolutions and take up a common position on a matter, but that is about it.

In democracies, declaring war is something parliaments usually do. The reasoning seems to be that war is too important to be left to a single cabinet. There are three exceptions among EU member states: 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 end of the 20th century, however, declaring war fell into disuse and the concept of crisis and the practice of crisis management entered the scene. Even the "war on terrorism" is a figure of speech rather than a legal circumstance.

Crisis management has come to represent all types of operations - except humanitarian aid in case of a disaster - in which the use of force cannot be excluded. Present crises are chaotic and unpredictable and the ensuing violence can easily escalate beyond control.

European governments, when contemplating participation in a 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 risk on the spot.

The governments of many EU countries are obliged to seek the consent of the national parliament before deploying armed forces in a crisis-management operation. This is either a constitutional obligation or a political habit, which ensures that the government has garnered sufficient support for its policy. France, Spain and the UK are exceptions to this rule: their president and prime ministers respectively have the power - so long as war is not formally declared - to commit troops in a crisis management operation without consulting parliament.

The power of the purse, an indirect way for parliament to exert influence, is in these three cases cleverly circumvented. The executive has access to procedures to secure funding for these deployments either outside the budget, or to amend the budget without seeking parliamentary approval.

Why are governments so reluctant to declare war? The reasons are crystal clear: they do not want to involve parliaments in the decision-making process. If national parliaments were formally involved, the dynamic of the process would change dramatically. The executive would lose its flexibility and the effectiveness of the coalition and the outcome of the operation might be degraded.

However, the consequences of not declaring war but nevertheless engaging in warlike actions are severe. War and the use of force are exceptional. When war is declared, an exceptional situation is consciously created, not only legally, but also from a moral and social point of view. Not declaring war leads to the normalization of war and the use of force. That is, "warlike actions" become part of what we consider normal. "Normalizing" the exception means perverting normality.

Before 1973, the US president could deploy American forces without consulting the Congress. As long as war was not formally declared, he virtually had a free hand, and US presidents made sure that war was never declared. Under the War Powers Act, the president is prohibited from committing forces beyond 60 days without Congress approval.

The EU is a 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 are being circumvented in decisions concerning deployment of troops.

A European War Powers Act could serve three purposes. Firstly, it would empower the European Parliament, acting on behalf of EU citizens, 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 states.

Secondly, sending troops to combat zones 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 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 Parliament on a regular basis during the operation.

Thirdly, a European War Powers Act could enable the European Parliament to evaluate each operation in a systematic and consistent fashion.

This would not take away competencies from national parliaments, but would create and attribute a new one.

• Marc Houben is a research fellow at the Centre for European Policy Studies, Brussels.

The author, who is a research fellow at the Centre for European Policy Studies, Brussels, examines whether it is time for the European Union to have the power to declare war if it chooses.

http://www.ceps.be http://www.ceps.be

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