Parliaments and “Just War”. Fusion and Confusion between Moral, Legal and Political Levels in Relation to Military Interventions

The modern Constitutions of democratic countries contemplate, in different forms, the principle of the repudiation of war as an instrument of conquest and offense to other peoples. This principle is often related to the willingness to cooperate internationally with other States for the purpose of peacekeeping among nations, accepting – in some cases – the possibility of providing for limitations to the sovereignty of the State on terms of reciprocity in order to create bodies able to better pursue that end at a global level. At the same time, the constitutional texts contain a discipline – usually very succinct and not detailed – concerning the formal procedures established for the declaration of the “war”, which therefore refer essentially to the sphere in which war (in the traditional sense) can still be considered legitimized by the modern Constitutions, i.e. essentially the defensive one. Given this regulatory context, for several years now in many legal systems there has been a lively debate about the correct legal framework to be given to all those military interventions (different from the “war” in the classic sense) in which States are involved within international operations of peacemaking, peacekeeping, peacebuilding and peace enforcement. It is no coincidence that in the most recent normative texts, especially international and supranational, the concept of “war” is often replaced by others, such as “armed intervention” or “military intervention”, with the purpose to bring the letter to the area – in the broad sense – of humanitarian (international) law, giving them an autonomous legal connotation. Moving from the difficulty to include these new kind of military operations into the traditional “language" used in the democratic Constitutions, part of the legal literature has often focused its attention on the structural differences between those interventions and the classic war (for example about the type of weapons that can be used, the rules of engagement, etc.) with the aim of claiming the former. Such definitional operations have inevitably met problems, trying to fix on a legal level abstract “borders” that are difficult to identify on the substantive level. The task of the lawyer, however, is not only to fix in normative texts rigid definitions, establishing in general and theoretical terms the specific characteristics of hypothetical military interventions to be classified as peace interventions. Moreover, the risk is to confuse levels that must be kept separate: the legal one and the political one. On the contrary, the task of the lawyer is first of all to verify if and how military interventions abroad for purposes of peace can be considered legitimate, according to the constitutional principles. Even when these interventions are considered admissible in relation to the aforementioned provision permitting limitations of state sovereignty in order to guarantee peace among nations, it is necessary to identify which bodies are called to intervene and the procedures to be followed so that the intervention of a country in a military operation can be considered legitimate. In this sense, it is essential to understand which is the role of Parliaments in the decision-making process. From this point of view, constitutional texts can appear incomplete, because they contain references that seem inadequate to being used directly for these new categories. Within this context the Governments, to whom the supreme military command is traditionally attributed, have played the leading role, often to the detriment of the prerogatives, on the one hand, of national Parliaments, on the other, (in particular) of the UN and its Security Council. In recent years, some procedural rules and principles have been introduced into different legal systems in order to oblige Governments to involve Parliaments (the only real representative bodies) in taking decisions regarding participation in military interventions abroad. This can be greeted favourably under the perspective of strengthening democracy in the assumption of military decisions and of reinforcing the legitimacy of the latter. It must however be stressed that a larger formal involvement of national Parliaments cannot represent the solution to all problems. Even with respect to various military interventions abroad strongly contested – perhaps rightly – in the past, very often the observers have focused only on their alleged illegitimacy, without deepening the political responsibilities of the representative institutions that have often decided to overlook the behaviour of the Governments. It can therefore be inferred that, also with regard to these topics, the parliamentary representation and the autonomy of the elective Chambers towards the Executives (especially in the parliamentary form of government) have a fundamental role and have to be taken into account in analysing the decision-making process about military engagements.