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September 07, 2007

Law Post: When Do Wars End?

A few weeks ago we (that would be you and me, not just me and the voices in my head) took a look at declarations of war (here and here and here). The question of how and when wars are legally started continues to come up, as it did at Wednesday’s debate when Ron Paul again falsely claimed that the Iraq war has not been declared and is illegal under international law.

A similar issue may be even more difficult to resolve: when do wars end? This is a difficult question because wars don’t typically end with an armistice or even a voluntary cessation of hostilities. In either case, international law provides that the parties are not legally bound to end hostilities until a peace treaty is signed.

For an example of this in practice, note President Bush’s remarks today that he will not end the Korean War until North Korea drops its nuclear ambitions. The Korean War came to a halt pursuant to an Armistice agreement signed on July 27, 1953. That agreement appeared to anticipate a forthcoming peace treaty, but that, of course, never appeared.

Domestically, this is more complicated because the U.S. Constitution does not explicitly give the power to end war to any branch of government. Instead, the decision to end war traditionally lies with the President as part of his treaty-making power, though subject to ratification in the Senate.

The U.S. Supreme Court, referring to the Civil War, ruled that “some public act of the political departments of the government to fix the dates,” both of the start and the end of war is necessary.

Ending a war with a treaty is fine when one is combating a state. But what about when we go to war against a specific government or organization? Following World War II, the Court faced the question again:

War does not cease with a cease-fire order, and power to be exercised by the President such as that conferred by the Act of 1798 is a process which begins when the war is declared but is not exhausted when the shooting stops.

[War] may be terminated by treaty or legislation or Presidential proclamation. Whatever the mode, its termination is a political act.

This raises some interesting questions about the two wars in which the U.S. is currently engaged (not counting the Korean War, which I hadn’t considered before President Bush’s remarks). In what ways can they end? Obviously, we will not be making peace treaties with the Taliban or Al Qaeda, since treaties are made between states. Furthermore, it does not seem likely that we will need or want peace treaties with Afghanistan or Iraq, which both possess ally governments.

Appropriately, it seems that these wars, begun by informal declarations of war, will end informally. The unanswered question is whether the president and Congress must work together to end them or whether one branch acting unilaterally can bring the wars to a close. Congress can halt funding, but can it legally declare an end to war if the president says that war continues? President Bush can halt military operations, but can he legally declare an end to war if Congress says that the war must go on?

The answer is unknown, but of serious importance. The Executive Branch currently enjoys expanded powers because we are in a time of war. When will that expansion end?

Finally, a note about the Global War on Terror: the GWOT is only a semantic war. As far as the courts are concerned, President Bush must look to the AUMF 2001, the AUMF 2002, the Military Commissions Act of 2006, or various defense spending bills to find authorization for war acts. The GWOT, on the other hand, will go on long after the Iraq War or the War in Afghanistan is over.

I mention it only because hysterical Leftists continue to whine about a “perpetual war” that only Bush can end. Their fears are (as usual) misplaced. The president does not possess war power just by giving a speech with the words “Global War on Terror” in it; he must rely on acts of Congress for that.

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posted by Gabriel Malor at 03:37 PM

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