Remarks to Status and Role of Military Functions

The status and role of the military or armed forces are—as the survey in Table 15.2 suggests—not always well defined. Many constitutions only refer incidentally to the armed forces (in connection with the role of the President or Government) or emergency situations.^[1026]

Some constitutions delegate the matter to the “ordinary” or—sometimes—“qual­ified” legislator.

As far as recognizable from the non-exhaustive overview constitutions—if at all—circumscribe the role and function as defending the territorial sovereignty and integrity from external attacks or aggressions in order to safeguard national secu- rity;^[1027] rarely they expressly refer to protect the constitutional order or the institutions (e.g. Austria; Bolivia).^[1028]

Even if it might be self-evident that the role of the armed forces must comply with international law, especially the right to self-defence according to Chap. VII of UN Charter, several constitutions reiterate the obligations under UN Charter or other covenants which can reinforce the open-mindedness and orientation to international law and peace (e.g. South-African Const). Thus, the Parliamentary Assembly of the Council of Europe in its Recommendation 1713/2005 stated that the deployment of troops abroad occur in accordance with the UN Charter, international law and international humanitarian law, while the conduct of the armed forces should be

Table 15.1 I I Military forces^a and national security institutions

Table 15.1 (continued)

Table 15.1 (continued)

Table 15.1 (continued)

Table 15.1 (continued)

Table 15.1 (continued)

^a The norms are only quoted if mentioned as separate regulations of the military and—with some exceptions—not in connection with e.g. governmental or presidential powers

^b The Georgian Clause introduced in 2017 is rather precise as it enumerates the persons acting in the National Council and limits its function during times of martial law

^c The Swiss clause is exemplary as far as it concerns the “militia” (“Miliz”) and circumsribes precisely the essential functions of the armed forces without beeing too overloaded

^d Art. 328 sent. 2 underlines the neutrality of the armed forces: “they are at the exclusive service of the Nation and in no case at the service of any person or political partisanship” which may conflict with the subsequently mentioned duties of “discipline, obedience and subordination” where the President is the Commander in Chief and appoints the higher ranks in the armed forces (art. 236 No. 5, 15, 16)

subject to the jurisdiction of the International Criminal Court.^[1029] The OSCE (Organisation for Security and Co-operation in Europe) also stipulated in its “Code of Conduct on Politico-Military Aspects of Security” (1994) that the external role of the armed forces should contribute to international peace and stability as well as the inherent right of States to individual and collective self-defence.^[1030] The Code also recognizes internal security missions of the armed forces (art. 36). Thus, it is common opinion if more recent constitutions refer to the obligations of international law.

Even if special references to the obligations of international law within the remit of the armed forces are missing this might flow from the “internationalization” or “opening up of the statehood” of the constitutions (e.g. art. 24-26 Basic Law; art. 9 B-VG, art. 11 Italian Const, art. 92-96 Dutch Const).^[1031] Modern constitutions might also refer to the (increasing) role of peacekeeping missions under UN or OSCE governance as a complementary function of the traditional defence function; it also implies a wider democratic legitimation of the deployment of armed forces abroad in general.^[1032]

As mentioned above, the function of the armed forces whether called “defence forces” or otherwise does not prevent the use of the military and other forces in well-

Table 15.2 O Ex -ante control of military missions abroad

Table 15.2 (continued)

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Table 15.2 (continued)

Table 15.2 (continued)

^a Only subconstiutional: law on deployments 2005 (Venice Commission, 2008, Annex A

^b Prior consent of Rijigoku only for declaration of war, not for declaration of increased state of defence (§ 13 par. 2 National Defence Act 2015)

Table 15.2 (continued)

^c Act on Military Crisis Management 211/2006 originally requiring a tripartite lock; UN Resolution (weakened), executive and legislative involvement; see also Raunio (2018), pp. 158ss

^d The principle dates back to the revolutionary period of Const of 3 Sept 1791; however, the term “war” is interpreted very strictly not comprising peace keeping missions abroad or military interventions on demand of governments

^e § 3 requires a request of the Government to the Bundestag in a rather detailed manner which can either be rejected or approved. It should be noted that the legislative reform is based on a judgement of the Federal Constitutional Court (FCC) in the “Military Deployments case” (90 BVerfG 286/1994) requiring the ex-ante approval of any foreign deployment of the armed forces (“Parlamentsheer”), which since then has been steadily extended to forms of parliamentary partici­pation in Afghanistan, Kosovo, Mali. The decision is an outcome of the so-called “essential matters- doctrine” requiring parliamentary decision when essential matters are affected

^f In connection with Law 25/1997 for all decisions on defence and security matters

^g See for a critical appraisal of the presidential decree power in these cases and the ambivalent practice until 2010 Wagner et al. (2010), p. 64

^h As the “Ley Organica” is a qualified subconstitutional law implementing the constitution the evaluation of the parliamentary participation since 2005 (with the PS Government of Zapatero) is different; for the preceding period see however Wagner et al. (2010), pp. 90ss

¹ Wagner et al. (2010), p. 86, state that there was not a formal approval until 2004 before sending troops abroad but practised to a certain extent

^j Wagner et al. (2010), p. 94, list Switzerland among the countries with ex ante-control

^k The Turkish invasion in the Kurdish zone of Northern Syria since 10 October 2019 (“Operation peace spring”) cannot be deemed in conformity with international law (art. 2 par. 4 UN-CH), as no case of self-defence is recognizable

^l Art. 92 has not been changed after the constitutional referendum in 2017 and leaves large discretion to the Executive in evaluating the first exception even if it mainly refers to the NATO and UN obligations

^m Even the War Powers Resolution 1973 (50 USC §§ 1541-1548) has not yet finished the debate notwithstanding the obligation of the President to consult the Congress in advance “in every possible instance” before deploying troops abroad which may normally extend to 60 days and be prorogated for 30 days; the presidents normally felt not bound by special obligations to remove the forces by a concurrent resolution of Congress; see for the debate in Hasebe (2010), p. 471; Jackson and Tushnet (1999), pp. 715ss

ⁿ The framing of the Constitution on deployment of troops abroad resembles in its scarce wording to a certain degree the US Constitution in sharing the war powers between the Executive and Parliament, but art. 75 no 28 leaves no semantic doubt on the ex-ante control; National Defence Law since 2006 in force curtailing the powers of the military due to its previous excesses in the political arena

^o The Bolivian Constitution contains clear descriptions of functions and ex ante control of sending troops abroad; for this positive evaluation in the preceding period until 2002, see also Wagner et al. (2010), p. 35

^p The control in Chile has been evaluated as a clear ex ante-control, with the exception of the intervention in Haiti in 2004 when the senate was sidelined, see Wagner et al. (2010), p. 42 ^q Therefore Wagner et al. (2010), p. 79, judge that an ex-ante control is absent in Peru

^r However, the “Peacekeeping Operations Act” 1994 for the deployment of JSDF requires the prior approval of the Parliament if the use of force is probable, see Hasebe (2010), p. 478

^s The Indian example follows largely the Commonwealth tradition of regarding military deployment abroad as an executive privilege, however this is the more remarkable as India has participated in many peacekeeping operations without express prior consent of the parliament, see Wagner et al. (2010), p. 60

¹ See Ministry of Defence Act 2008

Table 15.2 (continued)

^u Const. Amendment 2008; Hasebe (2010), p. 475, holds this a weaker restraint than the US War Powers Resolution

^v No involvement of Parliament (Law 2292/1995), see Wagner et al. (2010), p. 56 ^w Wagner et al. (2010), p. 80, note that Poland has no ex-ante veto power by the Parliament

^x Law on foreign deployments 46/2003 requires immediate information of decisions taken by government, Wagner et al. (2010), p. 81

^y Law on troop deployments 42/2004 requires the President to inform Parliament within 5 days, see Wagner et al. (2010), p. 83

^z However, a parliamentary debate has taken place, e.g. in the case of war in Iraq; it is disputed whether this example already constituted a constitutional convention, but the House of Lords Select Committee on the Constitution, 2006, 15th Report, par 98, clearly endorsed that any convention should require a parliamentary approval before deploying British Forces outside the Kingdom in actual or potential conflict ^aa Wagner et al. (2010), pp. 30s

^ab Canada has participated in many international peace-keeping missions with all kinds of ex-post parliamentary participation, see Wagner et al. (2010), pp. 40s ^ac For earlier periods see at Wagner et al. (2010), pp. 49ss

^ad For the time until 1991 Wagner et al. (2010), p. 104

^ae In the case of Dispatch of Korean National Armed Forces in Iraq the Constitutional Court (2003 HUN-MA 814, 29/4/2004) underlined the necessity of parliamentary approval by the Parliament after the decision of Pres. Roh tae-woo and consultation of the National Security Council, see Chang et al. (2014), p. 202

^af Following the British-Commonwealth tradition no legal obligation of ex ante-approval but information and consultation of Parliament possible, see Wagner et al. (2010), p. 75

^ag The reluctance of the South-African Constitution may partly be explicable by certain Anglo- American influences in the constitution making process as well as due to the type of presidential system; for a critical appraisal of the constitutional practice see Wagner et al. (2010), p. 85

defined cases, for example in emergency situations, internal insurrection, natural or technological disasters. The question of how the constitutional text incorporates the involvement of the armed forces in these exceptional cases is more a textual- semantic aspect than a fundamental juridical one.

First of all it may be recommendable to clearly delimitate the function of the military force from other “security forces”, such as police forces or intelligence services,^[1033] coast guards, border patrol and “intermediary forces” (as e.g. “gendar­merie” in France or “carabinieri” in Italy). The constitution should clearly circum­scribe the essential functions of the respective security services in order to foster legitimation and transparency; the details should be left to the legislature.

Secondly the assignment of additional or complementary functions of the mili­tary in exceptional cases should preferably be regulated in principle in the constitutional text.

It is historically understandable that older constitutions (e.g. USA and Norway) and older parliamentary democracies (UK, Denmark, Belgium, Luxemburg, Netherlands, Canada and Australia) do not regulate the involvement of the armed forces outside of their core function in constitutional text(s) but leave it to the legislature.^[1034] But these examples do not preclude the incorporation of rules for the military in special extraordinary situations in the constitutional text.

As regards the advisory bodies, mainly called “National Security Council” or “National Defence Councils” their constitutional regulation appears less urgent unless it could grow into a “mini” executive government; however several constitutions circumscribe their function and composition in great detail which reflects the strive for transparency and legitimation (e.g. North-Macedonia, Portugal and Brazil). Advisory bodies may also be reserved for times of war if they are not deemed as necessary consultative bodies during times of peace (e.g. Georgia and Hungary); some constitutions differentiate between national “Armed Forces Coun­cil” and “National Security Council” (e.g. Ghana and Nigeria), but this should be regulated in more detail by the legislature. In general, they derive their legitimacy directly from the constitution or—indirectly—from the democratic legitimation of the governments being able to install advisory and consultative bodies for fulfilling executive tasks. In many countries, especially those belonging to the Common­wealth the advisory function is integrated within the Departments of Defence which are special branches of the governments (e.g. UK, Canada and Australia). In semi presidential systems, the question can arise, where the National Security Council sits and whom it reports to. Parallel structures should be avoided.

15.3