Declaring War vs. Making War on the Islamic State

A declaration of war on the “Islamic State” would be counterproductive to the goal of defeating it.  It would be better legally and diplomatically to make war on the “Islamic State” without declaring war on it.

A declaration of war is an official statement that a state of war exists between one state and another.   The “Islamic State” is not a de jure government or a state, but a jihadist (violent holy war) organization that has de facto control over parts of two states, Syria and Iraq.  Therefore, a state cannot legally declare war on it.  If a state did nevertheless declare war on the Islamist organization, such a declaration of war against the “Islamic State” would legitimatize it as a state, which is what it desires, and entitle it to all the privileges of sovereignty.  Furthermore, a declaration of war would obligate the state that declares war on the Islamist terrorist organization to negotiate a peace treaty with it, which would necessarily require negotiation with terrorists. 

Instead, war should be made on the “Islamic State” without any declaration and the jihadists should be treated like any other terrorists, that is to say, not as soldiers, but as war criminals who forfeit any legal protections.

In the particular case of the United States, the President has the constitutional authority as the Commander in Chief to make war.  Note: the office was created around General George Washington.  As mentioned above, Congress’ power to “declare” war means the power to make a declaration.  In other words, the power is that of making an official statement that has certain legal and diplomatic significance, but is a relatively minor power compared to the power to make war, a distinction specifically made by the Framers of the Constitution, who were particularly interested in providing the Commander in Chief the power to respond to an imminent threat.  Indeed, just as war can be made without a declaration, a declaration of war can be made without any making of war – a situation that occurred, for example, during the Roman Republic.  Therefore, there is no such thing constitutionally as congressional “authorization” of war.  Congress’ war powers are limited mostly to its power to authorize expenditures.  Only in this limited sense, does Congress indirectly or tacitly “authorize” war, and only if additional expenditures are necessary beyond what it has already budgeted.  

Congress may indicate its approval of war, as it often has, such as it did shortly after the September 11, 2001 Terrorist Attacks, in which it gave its assent to President George W. Bush’s announced plan to make war on global terrorist networks that threatened the U.S., of which the “Islamic State,” an offshoot of al-Qaeda, the terrorist organization which had committed the September 11 Attacks, certainly qualifies.  The reason the U.S. did not declare war on Afghanistan’s de facto government led by the Taliban that was providing safe haven to al-Qaeda, is because the U.S. recognized the Northern Alliance, which controlled northeastern Afghanistan, as the de jure government of that state.  Thus, a declaration of war against Afghanistan would necessarily have been a declaration on the Northern Alliance, the American ally.  The President’s constitutional authority as Commander in Chief, coupled with congressional assent for the War on Terrorism, provide more than sufficient legal authority to make war on the “Islamic State.”