“Silent enim leges inter arma.”[1]
(“In times of war, the law falls silent.”)
- Introduction and Short Summary of Thesis.
This paper compares the constitutional mechanisms for going to war employed both by the United States and the Russian Federation, as well as the actual means by which these sovereign powers become embroiled in international conflicts.After World War II and the resultant Potsdam Conference,[2] the United States (US) and the Soviet Union emerged as the world’s twin hegemonic super powers. Although the Cold War effectively ended around 1989, as the Soviet Union lost its eastern European satellite countries and evolved into the Russian Federation (RF), the U.S. and RF still remained the only two states with the ability to destroy the rest of the humanity via full-scale nuclear engagement. The threat posed by the RF’s nuclear missile capability and the U.S.’s capacity to respond with equal force, remain the greatest security threat to date. The disturbing prospect of the RF and the U.S. participating in a direct conflict and generating a nuclear catastrophe highlights the importance of the formal statutory regulation under which these countries respectively operate when they allow themselves to go to war, and, perhaps more critically, how they have actually operated under this framework in recent times.
Any analysis of the US’s and RF’s path to waging war involves an examination of the U.S. Constitution regarding the war powers given to the legislative and Executive branches, the way in which previous conflicts have been justified under these constitutional limitations and perhaps most important of all, the way in which the U.S. has gone to war, whether within constitutional limitations or pursuant to intensely challenged constitutional authority.
An analysis of the War Powers Act of 1973[3] is also critical to determining if the Congress and President are properly authorized to act before engaging in conflicts with sovereign states. 50 U.S.C.A. § 1541 states,
§ 1541. Purpose and policy
(a) Congressional declaration
It is the purpose of this chapter to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.
(b) Congressional legislative power under necessary and proper clause
Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.
(c) Presidential executive power as Commander-in-Chief; limitation
The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
Interpretation of the relevant statutory framework by the U.S. courts seems to reflect a divide before and following the Vietnam conflict. In effect, litigation prior to and during World War II, and continuing through to the Korean conflict, appears to focus on various secondary aspects of the war powers of Congress and the Executive, such as the authority to seize property and to conscript individuals into the armed forces[4]. The anti-war movement of the late 1960’s at that timeencouraged a series of legal precedents which served to challenge the President’s prerogative based upon the necessity and/or absence of a formal declaration of war[5]. The one obvious exception to this phenomenon and its analytical convergence on the issue of the pre-requisites to a declaration of war is the Civil War (which was undeclared), a conflict during which our courts pointed towards the eventual reluctance of courts to interfere with the discretion of the Executive in most matters of war.[6]
Equally important in this analysis are the provisions of the RF’s Constitution which govern the RF’s legal ability to engage in conflicts with a sovereign state. Just as a pragmatic assessment of why the US has gone to war without regard for statutory mandates, a practical analysis of how the RF goes to war outside the limits of its constitution involves statutory interpretation of textual ambiguity, examination of legislative intent, and application of some version of the separation of powers doctrine.
The first part of this paper will thus focus on the text of the constitutional and statutory channels by which both the US and RF may legally conduct military action against sovereign states under their constitutions and legislative enactments. The paper then summarizes the history of armed engagements by both the US and the RF. The purpose of this summary is to parse the most notable recent engagements of the US and RF military according to the manner in which the two states have chosen to declare and wage war, against the backdrop of the legal constraints set by the statutory text. Having compared the relative decision-making powers of the American and Russian presidents and their legislatures, the paper will close by proposinga solution for reforming their exercise to more closely reflect the intentions of the framers of these Constitutions.
By far, the chosen method by which the RF and the US have declared and waged conflicts, has primarily been via acts by the Executive branch, and this outside the explicit boundaries set for the Executive by the US constitution. Comparatively, the RF’s constitution lends itself to conflicting readings; the most extreme analysis being that the Russian president is virtually unconstrained by the RF’s constitution. In either case, the courts have not readily or efficiently intervened when the state fails to honor the constitutional and legislative limits placed upon the war power. It may be persuasively argued that in times of war, the law falls silent.
- Governing Legal Constitutional, Legislative and Executive Restraints Regarding War Powers in the US and RF.
The analysis first begins with an examination of the legal restraints and authorizations regarding the use of military force contained in the text of the constitutions and legislative acts of the US and RF, respectively.
A)The U.S..
- The US Constitution.
Relative to war powers, the US Constitution first addresses the war powers assigned to the legislative branch. Under Article I of the US Constitution, dealing with the powers of the legislative branch, the Constitution outlines the following explicit powers. “The Congress shall have Power To …
a)declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
b) raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
c)provide and maintain a Navy;
d)make Rules for the Government and Regulation of the land and naval Forces;
e)provide for the calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
f)provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the U.S. respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline provided by Congress;
…
g)make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested in this Constitution in the Government of the U.S., or in any Department or Officer thereof.[7]
The above powers are those conferred explicitly to the legislature by the Constitution. As well as powers given to the legislature, the constitution also confers a number of war powers on the Executive branch and the president.
Regarding the war powers of the president and Executive branch, the US constitution provides that, “The President shall be Commander in Chief of the Army and Navy of the U.S., and of the Militia of the several States, when called into the actual Service of the U.S. …”[8]
- The War Powers Resolution of 1973.
Principally in response to the way the US became involved in the Korean and Vietnam conflicts by unilateral Executive decisions that essentially bypassed the constitutional requirement that Congress formally declare war before the president is authorized to use his commander-in-chief powers to menace a sovereign state, Congress passed the “War Powers Resolution of 1973” over the veto of President Nixon.[9]
The Resolution was supposed to be the mechanism by which the president may use US Armed Forces. It purports to spell out the situations under which the US president may deploy the military without a Congressional declaration of war.[10] Relevant portions of the War Resolution will be presented later in this paper as conflicts occurring after the passage of the War Resolution are discussed.
B)The RF.
- The Constitution.
The Constitution of the RF came into force from the day of its official publication on the basis of the results of a nationwide vote. Election day, December 12, 1993, is considered the day of adoption of the Constitution of the RF.[11] The following is a breakdown of the Chapters and Articles of the RF’s constitution regarding war-making powers.
a)Section 1, Chapter 3. The RF.
Chapter 3, Article 71(l) states:
The jurisdiction of the RF shall include: … l) defense and security; defense production; determining procedures for the sale and purchase of arms, ammunition, military hardware and other equipment; production of fissionable materials, toxic substances, narcotics and procedure for the use thereof.[12]
Chapter 3, Article 71(m) states:
The jurisdiction of the RF shall include m) defining the status and protection of the state border, territorial waters, the air space, the exclusive economic zone and the continental shelf of the RF.[13]
Chapter 3, Article 78(4) purports to give the Executive the concurrent power to enforce the jurisdiction of the RF, providing:
The President of the RF and the government of the RF shall, under the Constitution of the RF, exercise the authority of federal state power throughout the territory of the RF.[14]
b)Section 1, Chapter 4. President of the RF.
Chapter 4, Article 82(2) states:
The President shall be the guarantor of the Constitution of the RF, and of human and civil rights and freedoms. In accordance with the procedure established by the Constitution of the RF, he shall take measures to protect the sovereignty of the RF, its independence and state integrity, and ensure concerted functioning and interaction of all bodies of state power.[15]
Article 83(h) states:
The President of the RF shall h) endorse the military doctrine of the RF.[16]
Article 87 states:
1. The President of the RF shall be the Supreme Commander-in-Chief of the Armed Forces of the RF.
2. In the event of aggression against the RF or an immediate threat thereof, the President of the RF shall introduce martial law on the territory of the RF or in areas thereof with immediate notification thereof of the Federation Council (higher legislative body – similar to US Senate) and the State Duma (lower legislative body – similar to US House of Representatives).[17]
c) Section 1,Chapter 5. The Federal Assembly.
Article 102 states:
1. The jurisdiction of the Federation Council shall include:
a) approval of changes of borders between the subjects of the RF;
b) approval of the decree of the President of the RF on the introduction of martial law;
c) approval of the decree of the President of the RF on the introduction of a state of emergency;
d) making decisions on the possibility of the use of the Armed Forces of the RF outside the territory of the RF.[18]
Article 106(f) states:
The federal laws adopted by the State Duma shall be considered by the Federation Council on a mandatory basis if such laws deal with the issues of f) war and peace.[19]
d)Section 1, Chapter 6. The Government of the RF.
Article 114 (1)(e) states:
The Government of the RF shall e) adopt measures to ensure the country's defense, state security and the implementation of the foreign policy of the RF.
e)Relevant Statute: Federal Constitutional Law No. 1-FKZ of January 30, 2002 on Martial Law
On January 30, 2002, the RF’s bicameral legislature approved a Federal Constitutional Law outlining in detail how and when martial law is to be implemented in response to a military threat (“the Martial Law Statute.”) Although the reason for the law being created is not evident from available materials, the timing and wording of the law makes it likely that this statute was enacted as a response to the events in Chechnya. Near the end of 2001 and the beginning of 2002, Chechen rebels, formerly suppressed, reunited in their campaign to liberate Chechnya as a breakaway republic. More regarding the history of military action in Chechnya will be discussed below in this paper where particular military actions by the RF and the US are analyzed in more detail. Although this law appears to have been enacted to deal with military engagements in the ChechnyaRepublic, it played no effective role in legally defining the terms under which the RF conducted the Second Chechen War, though the law has enacted as President Putin was in the process of effectively crushing the Chechen separatist movement. This engagement is outlined in more detail later in this paper.
C)Textual Analysis of US v. RF Constitutions.
Interestingly, under a textual analysis comparing the two constitutions, the US Constitution is relatively simple and unequivocal in stating the war powers. The power to levy war and raise armed forces is explicitly given to the legislative branch. U.S. Const. Art I, Section 8. The USpresident is solely charged with being the commander in chief of the armed forces after the armed forces are called to duty by the Congress. U.S. Const. Art. II, Section 2. This paper will first discuss the textual provisions of the RF’s Constitution and the seemingly boundless power of the Executive to initiate military action. After an analysis of the text of the Russian Constitution, more attention will be paid to the war powers enumerated in the US constitution and also the limitations created by the War Powers Resolution of 1973.
1)Analysis of the Text of the RF’s Constitution Related to War Powers and the Martial Law Statute.
In contrast to the US Constitution, the Russian document is a hollow vessel, with half-realized and apparently contradictory grants of authority between the Legislative and Executive branches. For example, under the RF’s constitution, the “[t]he jurisdiction of the ‘RF’ shall include defense and security.” Russian Const., Section 1, Chapter 3, Article 71(l.) Yet, also under the constitution, “the President of the RF and the government of the RF shall, under the Constitution of the RF, exercise the authority of federal state power throughout the territory of the RF.” Russian Const., Section 1, Chapter 3, Art. 78(4.) These two provisions seemingly appear to give both the president and the “government of the RF” the power to exercise “the authority of federal state power throughout the territory of the RF.” [20]Supra.
Chapter 4 of the RF’s constitution, purportedly outlining the powers of the president, does not clarify the situation. For example, under chapter 4, the Russian president “shall take measures to protect the sovereignty of the RF, its independence and state integrity …” and “endorse the military doctrine of the RF.” Russian Const., Section 1, Chapter 4, Articles 82-83. Furthermore, under Chapter 4, the president “shall be the Supreme Commander-in-Chief of the Armed Forces of the RF” and “[i]n the event of aggression against the RF or an immediate threat thereof, the President of the RF shall introduce martial law …” Russian Const., Section 1, Chapter 4, Article 87(1-2.)
Under these provisions, the power of the Russian president on issues of using the military is virtually limitless. The very wide range of Russian presidential powers permits an Executive to introduce legislation, issue decrees if the Duma does not pass his legislation, use a continuation budget if his budget is not passed, veto legislation that is passed by the Duma, and threaten the Duma with dissolution. Given this system of power sharing, what limitations can actually be said to exist upon the Executive's authority? Is the president occasionally forced to negotiate with the Duma to get what he wants?[21] Further complicating the war powers, under the next Chapter, Chapter 5, the Federation Council appears to be given the same and concurrent powers. For example, the Federal Council is given the power of “making decisions on the possibility of the use of the Armed Forces of the RF outside the territory of the RF.” Russian Const, Section 1, Chapter 5, Article 102(1)(d.)
And if the authority of who has the ultimate power to utilize the military for foreign conflict was not convoluted enough, Chapter 6, describing the powers of the “The Government of the RF,” states, “The Government of the RF shall adopt measures to ensure the country's defense, state security and the implementation of the foreign policy of the RF.” Russian Const., Section 1, Chapter 6, Article 114(1)(e.)