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,
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
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
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 .
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. Roman Republic
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
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.”