Power to Declare War or Emergency
15.4.1 Power to Declare War
The power to declare war in a formal sense is still regulated in many constitutions and normally closely linked with the executive functions of the President.
We refer to Table 8.3 in Chap. 8 of Writing Constitutions which outlines this sufficiently. However, there are constitutions which do not confer expressly the power to declare war to the Head of State (e.g. Austria, Germany, France, Ireland, Bolivia, Costa Rica, Venezuela) or leave it to Parliament in cooperation with the government. The parliamentary control of external military actions will be described in Sect. 15.4.2. In modern times however the initiation of warfare often remains unannounced.15.4.2 Emergency Powers
Emergency powers are manifold. The situations, procedure and substantial requirements are dealt with in more detail in Sect. 14.1ss. Dependent on specific situations the armed forces may also intervene in internal states of emergency assisting the ordinary police forces and special security forces.
Table 15.2 indicates that several constitutions regulate states of exceptions and the potential involvement within the “function” of the armed forces in a rather general manner (e.g. Austria, Croatia, Georgia, Hungary, Portugal, Switzerland, Brazil, Mexico, Peru or Nigeria) or circumscribe the involvement more concretely (e.g. Germany or Brazil).
The different “assisting” or “complementary” functions of the armed forces— according to the Report of the Venice Commission[1037]—may be subdivided into maintaining the public order, cases of disaster and other activities. Maintaining the public order may encompass different tasks as combating terrorism, armed uproar, protection of public buildings; protection of boarder, coastal waters and air space. Cases of disaster envisage mainly natural catastrophes like earthquakes, typhoons, floods, volcanic eruptions and similar disasters.
Other activities comprise e.g. the replacement of vital services (stationing of energy, oil, gas or electricity).There is a priori no general objection against involving the armed forces in special internal emergency situations as long as these acts are either expressly permitted by the constitution or at least by a clear reference to subconstitutional law (legal reservation).[1038] As the involvement of the armed forces in these circumstances is atypical and complementary to their traditional role the textual authorization should be rather precise and comply with the principle of proportionality.
15.4.2.1 Parliamentary Control of Emergency and War Powers
The intervention and deployment of armed forces in internal situations of emergency as well as in external defence and warfare requires democratic control and oversight in order to safeguard the protection and well-being of civilians and military personnel. This prevents the misuse of military power in general and the undermining of democratic institutions and the constitutionally established order.[1039] Military rule even slightly outweighed civilian rule between 1900 and 2008 across Latin American counties.[1040] Democratic control may appear in different forms, institutions or organs.
It may take the form of control of the Parliament as a whole, smaller entities of parliament, e.g. defence committees,[1041] budget committees, investigation committees or parliamentary ombudsmen apart from normal interrogation rights (e.g. question time).
However, the following survey is limited to the control of the democratic legitimation as a whole, i.e. Parliament (or both Houses). The paramount role of the Parliament as constitutional guardian of the accountability of the military branch of
the executive thus becomes evident.[1042] Parliaments may exercise either ex ante control, ex post control or both.[1043]
Regarding the control of internal emergency measures, the control of the executive decision may be—by its very nature—mostly ex post—facto (or in parallel) whereas the control of sending troops abroad may be—depending on the danger of threat or attack—also a priori by a proactive strategy and/or participation in international military and peacekeeping operations requiring the prior consent of the democratically legitimated representation of the people.
15.4.2.2 Emergency Powers
As the procedure including the organs and institutions involved in the oversight of emergency situations has been reviewed in Chap. 14 for the different branches (executive, legislative and judiciary) we refer to these overviews and remarks.
15.5