Though soldiers and military leaders are bound by Just War Tradition (JWT), members of Congress and civilian leaders are not. The passage of HR 1009, which would require the consideration of JWT “prior to any vote with respect to a declaration of war or an authorization of the use of military force,” is one step toward bridging this gap. 

Just war tradition has long been institutionalized in international and domestic law, through the application of the U.S. military code of justice. It’s time to institutionalize it in our politics. HR 1009 would also steer us back to the Constitution regarding Congressional war powers, moving away from extreme political polarization toward more constructive public debates concerning U.S. military interventions. 

Congressman McNerney initiated HR 1009 to increase deliberation about the use of force, to create a set of standards, and to have a more structured and principled debate about the use of force within the House of Representatives. Why is this necessary? What does the Resolution do, and not do, and why is it needed at this time?

JWT is more than an ancient theological and philosophical tradition to constrain war and bring greater peace and justice. Soldiers take JWT seriously or risk court martial. JWT’s “in bello” criteria of discrimination between civilian and military targets, and proportionality, are integrated into the U.S. military code of justice and the international law of armed conflict. From the Geneva Conventions to bans on chemical, biological, and nuclear weapons, civilian protection, discrimination between civilian and military targets, and proportionality are deeply institutionalized in military law. The work of U.S. military lawyers and targeteers, who carefully assess possible target sets to minimize civilian casualties, is evidence of how seriously the U.S. military considers JWT.

Members of Congress are not similarly bound to consider JWT in their debates over the use of force.  JWT’s “ad bellum” criteria before using military force are not as well-institutionalized as the “in bello” criteria. This gap between military and civilian leaders is evident when at times members of Congress and civilian leaders suggest the use of military force in ways that are clearly illegal by U.S. and international military law, such as suggestions to attack the families of suspected terrorists. Passing HR 1009 would help address this civilian – military disconnect. 

The resolution would also help bridge another gap: Congressional failure to execute its Constitutional role in decisions to use U.S. military force. The Constitution gives the power to declare war to Congress, but Congress rarely uses its power, in part due to the expansion of the “Imperial Presidency.”  Over time, and particularly since the September 11^th terrorist attacks put the U.S. on a continuous war footing, presidents of both political parties have expanded the use of U.S. military force by executive decision.  Congress has acquiesced to Presidential commitments of U.S. military forces, no matter which political party controls Congress and so Congressional war powers have atrophied.  Political polarization has worsened these trends, furthering the decline in principled debate in Congress.

The Constitution gives Congress the sole power to declare war and to exercise authority over military forts, bases, and arsenals, and the House of Representatives alone has the power to initiate any funding. The Constitution also grants Congress the power to raise and support armies, provide and maintain a navy, and to make rules to govern and regulate land and naval forces.  But the Constitution says little about how U.S. military forces ought to be used, for what purposes. 

Passing HR 1009 would encourage members of Congress to fulfill the engaged role the Founding Fathers envisioned in the Constitution, in which members of the legislature discuss and debate decisions over-committing U.S. military forces abroad. Providing JWT principles to structure Congressional debate offers practical channels to push back against both the Imperial Presidency and the polarization of our politics. As long as the US has the world’s most powerful military and debates when to use it, HR 1009 will be necessary. The conclusion of military operations in Afghanistan has not ended suggestions to use U.S. military forces, from Iran to Taiwan. HR 1009 is a conversation starter, reminding members of Congress to consider whether a proposed U.S. military intervention will serve a just cause, will bring more good than harm, is proportional, is a last resort, and will foster a just peace.  

Critics note that HR 1009 is not an anti-war Resolution. It disappoints both the pro-Putin wing of the Republican party and the Code Pink wing of the Democratic party.  It does not stop U.S. military interventions. McNerney describes HR 1009 as a modest resolution; a nonbinding suggestion that Just War tradition help structure future debates over U.S. military interventions by members of the House of Representatives.  

Critics are skeptical that voluntary codes have any impact, yet the history of International Relations shows that nonbinding norms often become institutionalized in binding law over time.  For example, many parts of the 1948 Universal Declaration of Human Rights are now enshrined in binding international and domestic laws, from the Genocide Convention to the Americans with Disabilities Act. 

HR 1009 is an important step in bridging the gap in law. Our soldiers are already bound by JWT in bello criteria, after political leaders decide to use force. Our political leaders should likewise take JWT principles seriously, before troops are committed.