European Military Law Systems [Reprint 2012 ed.] 9783110907261, 9783899490312

Citation preview

European Military Law Systems

European Military Law Systems

Edited by

Georg Nolte

W DE

G

RECHT

2003 De Gruyter Recht · Berlin

© Printed on acid-free paper which falls within the guidelines of the ANSI to ensure permanence and durability.

ISBN 3-89949-031-2

Bibliografische

Information

Der Deutschen

Bibliothek

Die Deutsche Bibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über http://dnb.ddb.de abrufbar.

© Copyright 2003 by De Gruyter Rechtswissenschaften Verlags-GmbH, D-10785 Berlin All rights reserved, including those of translation into foreign languages. No part of this book may be reproduced in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without permission in writing from the publisher. Data Conversion: Werksatz Schmidt & Schulz, Gräfenhainichen Printing and Binding: WB-Druck, Rieden am Forggensee Printed in Germany

Foreword The European Union has intensified its efforts towards the creation of a common security policy. In 1999, the European Council decided in Helsinki that European armed forces structures should be created to take over the duties of the so-called "Petersberg Tasks" within the context of operations conducted by the EU. The prospect of constructing common European armed forces structures requires a better understanding of the various national military legal systems of the European member states. A number of multinational units with a higher level of integration have come into being in recent years, including the Eurocorps, the First GermanNetherlands Corps, and the Multinational Corps Northeast. These units occasionally experience internal conflicts which can be traced back to differences in the applicable legal systems. The Defence Ombudsperson of the German Bundestag declared in his report for the year 2000 that differences in the military legal systems were in fact creating friction which led to inefficiency and damaged the soldiers' ability to work as a team.1 The German Ombudsperson has been encouraging the creation of a European military legal system since 1995.2 It is against this background that the German Ministry of Defence decided in 2000 to commission a study comparing various European systems of military law. This study has been undertaken by the editor with the help of Dr. Heike Krieger (University of Göttingen) and a number of colleagues from different European states. The original study consists of a General Report which gives an overview and compares nine different European military law systems. This General Report has been published separately in German. 3 The present book contains not only the original study (the General Report) but also all national reports in English. Originally, the study was limited to examining the military legal systems of those eight partner states with which Germany has formed permanent multinational units, namely Belgium, Denmark, France, 1 German Parliament, Report by the Ombudsperson for the Armed Forces, annual report 2000, Bundestags-Drucksache (German Parliamentary minutes) 14/5400, p. 41. 2 German Parliament, Report by the Ombudsperson for the Armed Forces, annual report 1995, Bundestags-Drucksache 13/3900, p. 33. 3 G. Nolte/H. Krieger, Europäische Wehrrechtssysteme. Ein Vergleich der Rechtsordnungen Belgiens, Dänemarks, Deutschlands, Frankreichs, Luxemburgs, der Niederlande, Polens, Spaniens und des Vereinigten Königreichs (Baden-Baden, 2002).

VI

Foreword

Luxembourg, the Netherlands, Poland, Spain, and the United Kingdom. In view of the importance of Italy as a large founding member of the European Communities and its notable involvement in the process of multi-national military integration, the editor has decided to commission a report on the Italian military law system.

1. Preparation of the Study The General Report and the Summary and Recommendations by the editor and Dr. Heike Krieger (University of Göttingen) are based on state reports for Belgium by Professor Dr. Pierre d'Argent (Catholic University of Louvainla-Neuve), for Denmark by Professor Jergen Albaek Jensen (University of Aarhus), for France by Professor Jörg Gerkrath (University of Avignon), for Germany by the editor and Dr. Heike Krieger (University of Göttingen), for Italy by Professor Jörg Luther (University of Eastern Piémont, Turin), for Luxembourg by Dr. Frédéric Dopagne (Catholic University of Louvain-la-Neuve), for the Netherlands by Professor Leonard Besselink (University of Utrecht), for Poland by Dr. Michai Kowalski (University of Krakow), for Spain by Dr. Lorenzo Cotino Hueso (University of Valencia), and for the United Kingdom by Professor Peter Rowe (University of Lancaster). The study was commenced in January of 2001. In March 2001, a questionnaire was sent to all members of the research group along with a model answer on the German military legal system. The questionnaire focussed on the constitutional elements of military law and the legal position of the soldiers, particularly on the form of the superior-subordinate relationship, disciplinary law, institutional representation, and guard duties. The national reporters assembled in workshops in March and September of 2001, which were also attended by representatives of the German Ministry of Defence.

2. Purpose and Object The primary goal of the study is to provide an outline of comparative military law in Europe. The study does not purport to identify the minimum requirements of applicable international or European law for the purposes of harmonisation or unification of military law. Obviously, the recommendations for harmonisation take the general framework into account which is provided by the applicable international and European legal principles. The study is not, however, designed to describe the minimum requirements that the European Convention on Human Rights, EU law, or general public international law

Foreword

VII

might require for every area of military law. Due to this fact, neither the implications of the European Court of Human Rights' decision in the case of Waite and Kennedy v. Germany4 for the possible creation of military organisations with their own personality under international law, nor the jurisprudence of the European Court of Justice on the applicability of social legislation in European Community law to military law shall be closely investigated in this book. 5 The book is also not a comprehensive treatise of comparative military law. Its purpose is rather to offer a comparative overview of individual areas of the various national military legal systems. Other areas, such as employment law, the right to compensation, the guarantee of subsistence-level living, and the right to security in the workplace, are left out entirely. Unfortunately, not all possible areas of interest could be discussed in depth within the given framework. In addition, the limited degree of scientific study of military law in certain states placed restrictions on some of the national reporters.

3. Method The book is not based on unmitigated observation of practical problems. It is rather the result of work based on texts and documents. As a result, several questions relevant to current practice may not be treated in sufficient depth, while other questions, which may not become relevant until a later date, are discussed more thoroughly than the present situation seems to warrant. Thus, this book is not primarily designed to discover which differences in the various legal systems are most important for current practice. Examples of this could include situations such as the German system of institutional representation being found disquieting by French officers, or the scale of political rights afforded to German soldiers causing envy in their French counterparts. Even the question of how to deal with homosexual soldiers is a question of law only to a certain extent. In the end, many problems arising in day-to-day practice pose no questions appropriate to examination by a jurisprudential study. This is true, for example, of the various regulations on holidays, which are easy to ascertain, but difficult to harmonise for practical reasons. During the preparation of this book it became clear that the extent to which military law has been subjected to scientific and academic study varied greatly among the states under examination. While the academic literature in Ger-

4

ECHR, Case of Waite and Kennedy v. Germany, judgement of 18 February 1999, No. 26083/94, (1999) Europaeische Grundrechte Zeitschrift, pp. 207-213. 5 ECJ, Case C-285/98, Tanja Kreil v. F.R.G., [2000] E.C.R. 1-69.

Vili

Foreword

many, Italy, the Netherlands, Spain, and the United Kingdom has grappled with questions of military law rather intensively, Belgium, Denmark, France, Luxembourg and Poland seem to be lacking a general in-depth discussion of such questions among academics. It is noteworthy that, despite the increased participation of the various armed forces in multinational structures, there has been very little attempt in the individual states to reform legislation on the military. The Netherlands is an exception to this rule, having implemented a number of reforms which relate to the participation of soldiers in multinational structures. To a certain extent, the same is true for Italy.

4. Acknowledgments The publication of this book would not have been possible without the support from many sides. Lindsay Cohn (Duke University) and Roslyn Fuller (University of Göttingen) have each worked with great dedication, diligence, and sensitivity on the linguistic revisions. Anna-Jule Arnhold, Anna von Gall, Seyda Emek and Maxim Kleine (all University of Göttingen) have supported this book in various ways, but each with the same enormous enthusiasm and determined competence. Christiane Becker has performed an almost titanic task in completing all the necessary secretarial work. The Geneva Centre for the Democratic Control of the Armed Forces (DCAF) has provided generous financial support to cover printing expenses. The Centre's aims and activities are explained on the following page. Georg Nolte

Göttingen, April 2003

The Geneva Centre for the Democratic Control of Armed Forces (DCAF) The Geneva Centre for the Democratic Control of Armed Forces (DCAF) was established in October 2000 on the initiative of the Swiss government as an international foundation under Swiss law. The Centre encourages and supports states and non-state institutions in their efforts to strengthen democratic and civilian control of their armed and security forces. In order to implement these objectives, the Centre collects information, undertakes research and engages in networking activities in order to identify problems, establish lessons learned and to propose best practices in the field of democratic control of armed forces and civil military relations. Secondly, the Centre provides its expertise and support to all interested parties, in particular governments, parliaments, military authorities, international organisations, non-governmental organisations, and academic circles. Partnerships form the basis of the Centre's engagement in the security field. The Centre works in close cooperation with national authorities, international and non-governmental organisations, academic institutions and individuals experts. In its operational and analytical work, DCAF relies on the support of the forty-two governments represented on its Foundation Council, the fifty-plus renowned defence and security experts on its International Advisory Board, its Think Tank and its Working Groups. The Centre has established partnerships or concluded cooperative agreements with a number of research institutes and also with several international organisations and inter-parliamentary assemblies. In order to thoroughly address specific subjects relating to the democratic control of armed forces, DCAF has established or is in the process of establishing eleven dedicated working groups to implement its work programme: Security Sector Reform; the Legal Dimension of Democratic Control of Armed Forces; Parliamentary Control of Armed Forces and the Security Sector; the Democratic Control of Police and other Internal Security Services; the Role of Civilian Experts in National Security Policy; Transparency Building in Defence Budgeting and Procurement; the Military and Society; Civil Society; the Criteria for Success and Failure of the Democratic Control of Armed Forces; the Democratic Control of Armed Forces in the African Context; and the Partnership for Peace Consortium Working Group on Civil-Military Relations. The planning, management and coordination of the working groups is centralised in the Centre's Think Tank.

χ

Foreword

Moreover, DCAF provides its expertise on bilateral and multilateral levels, and also addresses the interests of the general public. A number of bilateral projects in the area of security sector reform and parliamentary oversight over the defence and security sector are underway within other states of South Eastern and Eastern Europe. At the multilateral level, DCAF implements several projects in association with the Council of Europe, European Union, NATO, OSCE, and the Stability Pact for South Eastern Europe. For further information please contact DCAF via www.dcaf.ch.

DCAF

Overview Foreword

by Georg Nolte

V

List of Contributors

XIII

Abbreviations

XIV

Chapter 1 :

Chapter 2:

European Military Law Systems: Summary and Recommendations by Georg Nolte and Heike Krieger European Military Law Systems: General Comparative Report by Georg Nolte and Heike Krieger

1

19

Chapter 3:

Military Law in Belgium by Pierre d'Argent

183

Chapter 4:

Military Law in Denmark by Jorgen Albœk Jensen

233

Chapter 5:

Military Law in France by Jörg Gerkrath

275

Chapter 6:

Military Law in Germany by Georg Nolte and Heike Krieger

337

Chapter 7:

Military Law in Italy by Jörg Luther

427

Chapter 8:

Military Law in Luxembourg by Frédéric Dopagne

517

Chapter 9:

Military Law in the Netherlands by Leonard F. M. Besselink

547

Chapter 10:

Military Law in Poland by Michal Kowalski

647

XII

Overview

Chapter 11:

Military Law in Spain by Lorenzo Cotino Hueso

711

Chapter 12:

Military Law in the United Kingdom by Peter Rowe

831

Chapter 13:

Integrated Bi- and Multinational Military Units in Europe . . by Maxim Kleine

889

List of Contributors Jorgen Albœk Jensen, Professor of Law, University of Aarhus Pierre d'Argent, Professor of Law, Dr., Catholic University of Louvain-la-Neuve Leonard F. M. Besselink, Professor of Law, Dr., University of Utrecht Lorenzo Cotino Hueso, Professor of Law, Dr., University of Valencia Frédéric Dopagne, Dr., Catholic University of Louvain-la-Neuve Jörg Gerkrath, Professor of Law, University of Avignon Maxim Kleine, Research Fellow, University of Göttingen, Institut of International Law Michal Kowalski, Dr., University of Krakow Heike Krieger, Dr., University of Göttingen, Institut of International Law Jörg Luther, Professor of Law, University of Eastern Piémont, Turin Georg Nolte, Professor of Law, Dr., University of Göttingen, Institut of International Law Peter Rowe, Professor of Law, Ph. D., Barrister, University of Lancaster

Abbreviations Abbreviation

Original

AC ACE ACM ADEFDROMIL

Appeal Cases Allied Command Europe Actions civilo-militaires Association de défense des droits des militaires

AUER AMAR

All England Law Reports Algemeen militair ambtenarenreglement

ANFASOCAF

Association Nationale et Fédérale d'Anciens SousOfficiers de Carrière de l'Armée Française L'Autorité provisoire des Nations Unies au Cambodge (1992-1993) ACE Rapid Reaction Corps Algemene Wet Bestuursrecht

APRONUC

ARRC Awb BELUKOS BGBl.

Mixed Belgium-Luxembourg Battalion in Kosovo Bundesgesetzblatt

BGH

Bundesgerichtshof

BIMS

Bureau Internationale Militaire Sport Biuletyn Rzecznika Praw Obywatelskich Bijzondere Raad van Cassatie Bundesverfassungsgericht

Biul. RPO BRvC BVerfG

English Translation

(First) Association for the Defence of Soldiers' Rights Dutch Service Regulation on the Status of the Soldier Association of Former Servicemen in France

United Nations Transnational Authority in Cambodia (UNTAC) Dutch General Administrative Law Act

Official Gazette, Germany Federal Court of Justice, Germany Service unit of the DICO Ombudsperson's Bulletin, Poland Special Court of Cassation, Netherlands, (1945-1952) Federal Constitutional Court, Germany

Abbreviations

XV

BVerfGE

Entscheidungen des Bundesverfassungsgerichts

BVerwG

Bundesverwaltungsgericht

C.A. C.C. C.P. C.P.M.G.

Cour d'arbitrage codice civile codice penale Codici penale militare di guerra Codice penale militare die pace codice di procedura penale

Collection of Judgements of the Constitutional Court, Germany Federal Administrative Court, Germany Belgian Court of Arbitration Civil Code, Italy Criminal Code, Italy Military Criminal Code for Wartime, Italy Military Criminal Code for Peacetime, Italy Criminal Procedure Code, Italy Higher Defence Studies Center, Italy Belgian Court of Cassation

C.P.M.P. C.P.P. CASD Cass. CDS CE CEMA

Centro Alti Studi per la Difesa Cour de cassation Chief of Defence Staff, Netherlands Conseil d'État

CiU

Chef d'État Major des Armées Centro Militare di Studi Strategici Conseil de la fonction militaire Commissie gelijke behandling Centro de Investigaciones Sociológicas Convergència i Unió

CJ CJM

Chief Justice Code de Justice Militaire

CLYB Cm COBAR7 COCER

Current Law Year Book Command Paper Consiglio di Base di Rappresentanza/ Consiglio Centrale di Rappresentanza

CEMISS CFM CGB CIS

Highest Administrative Court, France Chief of the Defence Staff, France Military Center for Strategic Studies, Italy Councils for the Military, France Dutch Commission for Equal Treatment Sociological Investigations Centre, Spain Nationalist Catalan Party, Spain French Military Justice Code

Guard of Soldiers Representatives, Italy

XVI COLA COIR Cols. COM COMELEF COMMLF

Comn. COMSEEBRIG Coord. COS CPM Cr.App.Rep. Crim. L.R. CRvB CSCE CSFM CSMD CSME CLK CZMCARIB Dab DAG DARIC

Abbreviations Centre opérationnel interarmées Consigli Intermedi di Rappresentanza Columns Commander Commandement des éléments français Commander of the Multinational Land Forces, Spain Command Papers Commander of the SEEBRIG Coordinador Commandement des opérations spéciales Código Penal Militar Criminal Appeal Reports Criminal Law Review Centrale Raad von Beroep Conference on Security and Cooperation in Europe Conseil Supérieur de la Fonction Militaire Capo di Stato Maggiore della Difesa Capo di Stato Maggiore dell'Esercito Commissie gelijke behandling Commandant der Zeemacht in het Caraïbisch gebied Directie algemene beleidszaken Direction des affaires générales Defensie Archieven-, Registratie- en Informatiecentrum

Joint Operations Centre Guard of Soldiers Representatives, Italy

Commander of French Forces

Editor Special Operations Command Spanish Code of Military Justice

Dutch High Court of Appeals

High Counsel of the Military Function Commander-in-Chief of the Armed Forces Commander-in-Chief of the Army Commission for Equal Treatment, Netherlands Dutch Commander of the Navy in the Caribbean Area Directorate for General Policy Affairs, Netherlands General Administration Directorate Service Unit of the DICO

XVII

Abbreviations DATF DBwV DCOM DCOS Defac DFP DGA DGEFC DG Μ Ρ DGV DGW&T

Deployable Air Task Force, Netherlands Deutscher Bundeswehrverband Deputy Commander Deputy Chief of Staffs Defensie Accountantsdienst Direction de la fonction militaire et du personnel civil Délégation générale pour l'armement Director-General for Finance and Control, Netherlands Director-General for Material and Personnel, Netherlands Diensten voor Geestelijke Verzorging Dienst Gebouwen, Werken en Terreinen

DICO DJZ DMC DMP DRM DSCD DSF DTO DV DWO

Directie Juridische Zaken Defensie Materieel Codificatiecentrum Dienst Militaire Pensioenen Direction du renseignement militaire Diario de Sesiones del Congreso de los Diputados Direction des services financiers Defence Telematica Organisatie Directie Voorlichting Defensie Verkeer- en Vervoersorganisatie

German Association of Soldiers

Directorate for the Audit Service, Netherlands Military and Civil Human Resources Directorate French Procurement Agency

Service Unit of the DICO, Netherlands Agency of the DICO, Netherlands Defence Interservice Commando, Netherlands Directorate for Legal Affairs, Netherlands Service Unit of the DICO, Netherlands Service Unit of the DICO, Netherlands Defence Intelligence Directorate Congress Sessions Daily Bulletin, Spain Financial Services Directorate Agency of the DICO Directorate for Public Information, Netherlands Service Unit of the DICO

XVIII DW DWS EAG EC EC Treaty ECHR ECJ ECMM/EUMM

ed. FH HR ΕΚ F. MA FM IΛ ESC ETA ETS EuGRZ EUROFOR EUROMARFOR EUROMIL EUROSAI F.I.D.E. FAS FIMI. FJ

Abbreviations Ustawa o dyscyplinie wojskowej Defensie Werving en Selectie European Air Group Constitución Española Treaty of the European Community European Convention on Human Rights European Court of Justice European Community/ European Union Monitor in Former Yugoslavia editor, edition European Human Rights Reports Eerste Kamer Etat Major des Armées Etat major interarmées de planification European Social Charter Euskadi Ta Askatasuna European Treaty Series Europäische GrundrechteZeitschrift European Rapid Operational Force European Maritime Force European Organisation of Military Associations European Organisation of Supreme Audit Institutions Fédération International pour le Droit Européen Fuerzas Armadas Force intérimaire des Nations Unies au Liban Fundamento jurídico

Military Disciplinary Law of Poland Service Unit of the DICO

Spanish Constitution

Upper House, Netherlands Central Defence Staff Joint Planning Staffs in France Basque Terrorist Organisation

International Federation for European Law Armed Forces, Spain United Nations Interim Force in Lebanon (UNIFIL) Grounds (Paragraphs) of Spanish Judgements

Abbreviations FYROM G2S

Gazz. Uff GDP GG HC HL HMSO HR ICC ICCPR ICESCR

ICJ IDI IFOR IGK ILM IMI INTOSAI

IPTF ISAF ISC

Former Yugoslav Republic of Macedonia "Groupe deux sexes"

Gazzetta Ufficiale Gross Domestic Product Grundgesetz House of Commons House of Lords Her Majesty's Stationary Office Höge Raad International Criminal Court International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Court of Justice Instituut Defensie Leergangen Implementation Force in Bosnia Inspecteur-Generaal voor de krijgsmacht International Legal Materials International Military Tribunal International Organisation of Supreme Audit Institutions, Italy International Police Task Force Enduring Freedom and International Security Assistance Indemnité de service en campagne

XIX

Mixed Working Group of Officers in the French Armed Forces Official Gazette, Italy German Constitution

Supreme Court, Netherlands

Service Unit of the DICO

Inspector-General of the Armed Forces, Netherlands

Allocation for Service during Campaign

XX

Abbreviations

ISFAS

Instituto Social de las Fuerzas Armadas

ISSE

Indemnité de sujétions de service à l'étranger Istituto Superiore di Stato Maggiore Interforze Junior Non-Commissioned Officer Journal Officiel de la République Française Law Reports: King's Bench Division Kosovo Force Kaderwet Dienstplicht

ISSMI JNCO JORF KB KFOR KwDpl let. LFO

letter Lov om forsvarets formâl, opgaver og organisation m.v.

LITPOLBAT LOMP

Lithuanian-Polish Battalion Loi relative à la participation du Grand-Duché de Luxemburg à des opérations pour le maintien de la paix dans le cadre d'organisations internationales Multinational Advisory Police Element Militaire Ambtenarenwet 1931

MAPE MAw MAWKLA

Militaire Ambtenarewet Koninklijke Landmacht

MDD

Maatschappelijke Dienst Defensie Multinational Force and Observers, Sinai

MFO

Independent Spanish Military Institute for the Management of the Social Security of Members of the Military Allocation for Service Submission Abroad Joint Services Staff High School, Italy

Official Gazette, France

Framework Act on Military Service, Netherlands Danish Defence Act on the Purpose, Task and Organisation of the armed forces Law No. 122 of 27 February 2001 Law on the Participation of the Grand Duchy of Luxembourg in Peace-Keeping Missions in the Framework of International Organisations

Dutch Act on Military Public Servants, Netherlands Act on Military Public Servants Royal Netherlands Army Social Service for the Ministry of Defence, Netherlands

Abbreviations MGFB MINIAR

MINUBH MINURCA

MIMJRSO

MIPONUH ML MLF MM) MoD MON Mon b. MONUA MONUG

MONLIK

Militair Geneeskundig Facilitair Bedrijf Mission des Nations Unies pour l'assistance au Rwanda Mission des Nations Unies en Bosnie-Herzégovine Mission des Nations Unies en République Centrafricaine Mission des Nations Unies pour l'organisation d'un référendum au Sahara Occidental Mission de la police civile des Nations Unie en Haïti Martial Law Multinational Land Force Multinational Division Central Minister of Defence/ Ministry of Defence Minister Obrony Narodowej Moniteur belge Mission d'observation des Nations Unies en Angola Mission d'observation des Nations Unies en Géorgie

MP MPC MRPL

Mission d'observation des Nations Unies pour l'Iraq et le Koweït Military Police Military Penal Code, Denmark Militaer Retsplejelov

MRT MSL

Militair Rechtelijk Tijdschrift Militaer Straffelov

XXI Service unit of the DICO United Natíos Assistance Mission for Rwanda (UNAMIR) United Nations Mission in Bosnia and Herzegovina United Nations Mission in Central Africa United Nations Mission for the Organisation of a Referendum in Western Sahara United Nations Civilian Police Mission in Haiti

Polish Ministry of (National) Defence Official Gazette of Belgium United Nations Observer Mission in Angola United Nations Observer Mission in Geogia (UNOMIG) United Nations Iraq-Kuwait Observation Mission (UNIKOM)

Danish Administration of Military Justice Act Dutch Military Law Journal Danish Military Penal Code, Law No. 642 of 30 September 1987

XXII

Abbreviations

MSr

Wet militair strafrecht

MSU η. N.J. N.J.B.

Multinational Specialized Unit note/footnote Nederlandse Jurisprudentie Nederlands Juristenblad

N.L.J. NAAFI

New Law Journal The Navy, Army, Air Force Institutes NATO Integrated Air Defence System North Atlantic Treaty Organisation Non-Commissioned Officer Nouveau Code Pénal Northern Ireland Law Reports Nederlands Instituut voor Oorlogsdocumentatie

NATINADS NATO NCO NCP NI NIOD

NIPO

no. OFC OLG OMD ONUST

OPEX OR ORE ORSEC (plan) OSCE

Nederlands Instituut voor Publieke Opinie en Marktonderzoek Number Objetivo de Fuerza Conjunto Oberlandesgericht Ustawa o urzedzie Ministra Obrony Naradowej Organisme des Nations Unies charge de la surveillance de la trêve Opérations extérieures Reaies Ordonanzas para las Fuerzas Armadas Reaies Ordonanzas del Ejército de Tierra Organisation des secours Organisation for Security and Cooperation in Europe

Military Criminal Code, Netherlands

Netherlands Law Reports Law Journal of the Netherlands

New Penal Code, France Dutch Institute for the Historical Study of World War II Netherlands Institute for Public Opinion and Market Research Joint Force Goal, Spain Regional Court of Appeals, Germany Polish Statute on the Office of the Ministry of Defence United Nations Truce Supervision Organisation (UNTSO) Foreign Operations Royal Ordinances for the Armed Forces, Spain Royal Decree for the Army French (Executive Plan for the) Organisation of Rescue

Abbreviations OVG

Oberverwaltungsgericht

PEC PFP PKO POLMAR

Plan Estratégico Conjunto Partnership for Peace Peace-keeping Operation Pollution maritime

POOP

Ustawa ζ 1967 r. o powszechnym obowiazku obrony Rzeczpospolitej Polskiej Dienst Personeelsen Salarisadministratie Queen's Bench Division Royal Air Force Loi du 14 janvier 1975 portant règlement de discipline des forces armées

PSA QB RAF RDF

RDFA RDGA RDM RDP Ree. REIA

REME RFA ROAF ROMP

Régimen Disciplinario de las Fuerzas Armadas Règlement de Discipline Général dans les Armées Regolamento di disciplina militare Revue de Droit Public Receuil Raad voor Europese en Internationale Aangelegenheden Royal Electrical and Mechanical Engineers British Reserve Forces Act 1996 Reales Ordonanzas para Loi du 2 août 1997 portant réorganisation de l'armées et modification de la loi du 27 juillet 1992 relative a la participation du GrandDuché de Luxembourg à

XXIII Regional Administrative Court of Appeals, Germany Joint Strategic Plan, Spain

Executive Control Mission to Prevent Pollution on the French Coast Line Polish Defence Act of 1967

Service Unit of the DICO

Military Disciplinary Law of Belgium, Moniteur belge (Official Gazette) of 1 February 1975 Military Disciplinary Law of Spain Military Disciplinary Law of France Regulation on Military Discipline, Italy Collection Council for European and International Affairs, The Netherlands

Royal Ordinances of the Army les Fuervzas Armadas Law on the organisation of the Armed Forces, Luxembourg

XXIV

RPR RSG RSZMO

s./sect. SACEUR SBG

SDC SEEBRIG Sess. SE-Statute SEW SFOR SG SGDN SGM SISDE SISMI SND-Statute SOFA SOFRES

Abbreviations des opérations pour le maintien de la paix dans le cadre d'organisations internationales Rassemblement pour la Republic Règle du service de garnison Rozporzadzenie Rady Ministrow sprawie szczegolowego zakresu dzialania Ministra Obrony Narodowej section Supreme Allied Commander Europe Soldatenbeteiligungsgesetz

State's Defence Committee, Poland South Eastern Europe Brigade Session Polish Statute on the State of Emergency Tijdschrift voor Europees en economisch recht Stabilization Force in Bosnia Soldatengesetz Sécretariat Général de la Défense Nationale Statut Général des Militaires Servizio per le informazioni e la sicurezza democratica Servizio per le informazioni e la sicurezza militare Statute on the State of Natural Disaster, Poland Status of Forces Agreement Société française d'enquêtes par sondages

French political party French General Service Regulation Polish Regulation of the Council of Ministers

Law on Institutional Representation of Soldiers, Germany

Dutch Journal for European and Trade Law Law on the Rights and Duties of Soldiers, Germany French General Secretary of National Defence French General Statute of the Military Review Military Service for Information and Security, Italy

French Polling Institution

Abbreviations Sr SSA

Wetboek van Strafrecht Service de santé des armées

Stb Suppl. SWZZ

Staatsblad Supplement Ustawa o sluzbie wojskowej zolnierzy zawodowych Tijdschrift voor Ambtenarenrecht Treaty on the European Union Temporary International Presence in Hebron Tweede Kamer

TAR TEU ΓΙΡΗ IK

HMD UNED UNFICYP UNIFIL UMPTF UNMAC/ BHMAC

UNMEE UNMIK

UNPROFOR UNSAS UNTS UNTSO

Unión Militar Democrática Spain Universidad Nacional de Educación a Distancia United Nations Peacekeeping Force in Cyprus United Nations Interim Force in Lebanon United Nations International Police Task Force United Nations Mince Action Centre/BosniaHerzegovina Mince Action Centre United Nations Mission in Ethiopia-Eritrea United Nations Interim Administration Mission in Kosovo UN Protective Force United Nations Standby Arrangements System United Nations Treaty Series United Nations Truce Supervision

XXV Criminal Code, Netherlands French Military Medical Service Dutch Official Gazette Polish Law on the Legal Status of Soldiers Dutch Journal on the Law of Civil Servants

Parliamentary Documents of the Lower House, Netherlands Democratic Military Union, National University for Open Education

XXVI UzwGBw

Abbreviations

WBO

Gesetz über die Anwendung unmittelbaren Zwanges und die Ausübung besonderer Befugnisse durch Soldaten der Bundeswehr und verbündeter Streitkräfte sowie zivile Wachpersonen Regeling voorziening bij vredes - en humanitaire operaties Wehrbeschwerdeordnung

WDO

Wehrdisziplinarordnung

WEU WLR WMS WMSr

Western European Union Weekly Law Reports Wet militaire strafrechtspraak Wetboek Militair Strafrecht

VVMT

Wet Militair Tuchtrecht

WStGB

Wehrstrafgesetzbuch

ZDv

Zentrale Dienstvorschrift

ZMS ZUPSZ

Zone militaire sensible Ustawa o zasadach uzycia lob pobytu Sil Zbojnych Rzeczpospospolitej Polskiej poza granicami panstwa

WHO

Law on Guard Duties, Germany

Dutch Regulation for Peace and Humanitarian Operations Law on Complaints of Soldiers of 1956, Germany Law on Military Discipline, Germany

Dutch Law on Military Criminal Procedure Dutch Military Criminal Code Dutch Act on Military Discipline Military Criminal Code, Germany Joint Service Regulation, Germany Sensitive Military Zone Polish Statute on the Employment and Stationing of Polish Armed Forces Abroad

Chapter 1

European Military Law Systems - Summary and Recommendations Georg Nolte and Heike Krieger 1

Table of Contents 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

11. 12.

Object and Goal of the Recommendations for Harmonisation Separation of Powers and State Organisation The Model of the Citizen in Uniform Fundamental Rights a. Political Neutrality b. Freedom of Association Duties of Soldiers The Power of Command and the Duty to Obey Working Time, Compensation for Overtime, and Leave Administrative Appeals Law The Law of Institutional Representation Disciplinary Law a. Elements of Disciplinary Infractions b. Disciplinary Superiors c. Procedure and Appeals d. Sanctions Military Criminal Law Guard and Sentry Duty

1 3 4 5 5 7 8 8 10 11 12 12 13 14 14 15 16 17

In the process of comparing the various military legal systems of Belgium, Denmark, France, Germany, Italy, Luxembourg, the Netherlands, Poland, Spain, and the United Kingdom, a number of differences have arisen. It should be noted here, however, that not all of the differences indicate a need for harmonisation.

1. Object and Goal of the Recommendations for Harmonisation The starting point of all considerations on how to harmonise European military legal systems must be the standards that the European Convention on Human 1

University of Göttingen.

2

Georg Nolte and Heike Krieger

Rights, and to a certain extent European Community law, provides for member states. These standards must be met by all military legal systems. The examination showed that only the military legal systems of Denmark, Italy, Spain, and the United Kingdom still prompt certain doubts as to the conformity of some of their individual elements with the ECHR. Harmonisation need not be left to inter-governmental initiatives. The immediate interaction of military legal systems in the multinational units can also lead to the participants' mutual influence on one another, and to individual or group initiatives within the domestic political process. Indications of the possibility of this route appear, for example, in domestic reform initiatives in France and Spain. The possibilities for harmonisation are subject to legal and politico-legal constraints. Suggestions for the harmonisation of constitutional legal regulations seem particularly unpromising. The socio-political consensus necessary for the modification of constitutional law may at present be impossible to reach in any or all of the examined states. A common harmonisation technique which ought to be kept in mind is the opening up of national military law to special regulations for multinational units. So, for example, the Dutch law provides that the national rules on hairstyle during duty and those on institutional representation are inapplicable to soldiers serving in multinational units. Independent sets of rules for multinational units generally represent a justified infringement on Article 3 paragraph 1 of the German Constitution (the right to equal treatment) since even when comparable groups under common regulations are treated differently, much of this differential treatment can be justified by the goal of safeguarding the functional capabilities of the national armed forces in the context of participation in multinational operations and multinational units. It is noteworthy in this context that the relevant regulations in the Netherlands are not subject to any doubt with respect to the principle of equal treatment. It must also be kept in mind, as we strive to harmonise military law, that, of the states included in the study, only Denmark, Germany, and Poland still have conscription systems. In Italy, conscription is scheduled to end in 2007. In Belgium, France, Luxembourg, the Netherlands, Spain, and the United Kingdom, conscription has been either de jure or de facto abolished. The effects of this situation on the military legal system are not necessarily immediate, but many regulations and concepts are nonetheless more or less meaningfully linked to the notion of a conscript or professional army. The German principles of "Innere Führung" and the citizen in uniform, for example, are heavily influenced by the idea of a conscript army (although these concepts may not inevitably be connected with one another).

European Military Law Systems - Summary and Recommendations

3

2. Separation of Powers and State Organisation Since it does not seem appropriate at present to introduce harmonisation into the constitutional rules of inner-state organisation, this study will restrict itself to the presentation of the respective frameworks of organisational law in which the military legal systems are to be found. At this point, therefore, we will merely present a summary of those pertinent regulations which will receive a more thorough treatment in Chapter 2 under section II. The historical and political backgrounds of each of the examined military legal systems are very diverse. Broadly speaking, one can make a distinction between small traditional democracies (Belgium, Denmark, Luxembourg, the Netherlands), large traditional democracies (France, UK), and post-authoritarian democracies (Germany, Italy, Poland, Spain). From a constitutional law perspective, the greatest differences lie between the traditional democracies side and the post-authoritarian democracies. The traditional democracies are characterised by a relative lack of specific provisions of military constitutional law; in other words, by an implicit trust in the appropriateness of the general constitutional law provisions for the military sphere. By contrast, the post-authoritarian states are much more particular about how constitutional provisions relate to the military realm. Among the traditional democracies, the smaller states have tended to regulate the military through constitutional law and parliamentary legislation in a more precise way than have the larger states. The position of the formal commander-in-chief of the armed forces is very differently regulated in the various states under study. This position can be occupied by the monarch, the president, the government as a collective, or the Minister of Defence. The purpose of Article 65a of the German Constitution to ensure the accountability of the Commander-in-Chief to the Parliament - is not reflected in the constitutional law of any of the other states under study. The Minister of Defence is not the commander-in-chief of the armed forces in most of the states, and he or she generally possesses no particular constitutional status. With the exception of Germany, none of the states included in the study saw fit to precisely define the possible uses of the armed forces, or to limit those uses substantially. Instead, most of these states rely on the presumption that the general (and sometimes also particular) constitutional provisions will lead to appropriate uses of the armed forces. The question of what kinds of uses of the armed forces are constitutionally allowed apparently has practical significance only in Germany. The question of transferrai of command/ sovereign rights does not appear to give rise in any of the states involved to any constitutional questions which would be specific for multinational military cooperation.

4

Georg Nolte and Heike Krieger

Since 1990, the role of national parliaments and the scope of parliamentary activities has intensified in all of the examined states. Only Germany, Italy and Denmark have a genuine requirement that the parliament consent to the deployment of armed forces, and the Danish requirement is quite modest compared to Germany's and Italy's requirements. An attempt to amend the Constitution to require parliamentary assent for military deployments failed in the Netherlands in 2000. However, a provision was written into the Dutch Constitution requiring the government to give parliament prior notification of any intended deployment intended to "further the international rule of law". Constitutional duties to inform the parliament of certain military deployments also exist in Belgium, Denmark, Italy, and Poland, but not in France, Spain, or the UK. As far as parliamentary powers of control are concerned, the German institutions of a constitutionally required parliamentary defence committee, which can upon the motion of a minority become a fact-finding committee, and of a particular Ombudsperson for the military, have no parallels in other states. Overall, the picture yielded by a comparison of organisational law in terms of the framework for using the armed forces shows that Germany occupies a somewhat exceptional position.

3. The Model of the Citizen in Uniform German military law is indelibly stamped with the image of the citizen in uniform. The concept, introduced by Count Baudissin, forms the basis of the military constitution. The rights of the soldier as citizen must be reconciled to the furthest extent possible with the duties of the soldier as soldier. Despite its particular historical genesis in Germany, the model of the citizen in uniform is hardly a specifically German phenomenon. The model of the citizen in uniform as a politico-military concept is simply held in particularly high regard in Germany. That being said, the core legal concept is common to all the European states studied. In every state, the soldiers are generally entitled to fundamental rights, and those rights may be derogated only on the basis of legislation (in Denmark and the UK, only on a "legal basis"). In none of the states surveyed are soldiers conceived as being integrated into a special legal relationship (besonderes Gewaltverhältnis) which would exclude or generally diminish their fundamental rights. In fact, all of the states allow limitations only if they are in the interests of the functional capability of the armed forces. This is not terribly surprising if one considers the European Convention on Human Rights. The European Court of Human Rights has already recognised the character of soldiers as bearers of fundamental rights in the Engel case in 1976, and since then,

European Military Law Systems - Summary and Recommendations

5

a series of further judgements on cases having to do with military law have been handed down. At the same time, the Court continued consistently to emphasise that the members of the armed forces can be made subject to special limitations on their rights, which could never be imposed on civilians.

4. Fundamental Rights Considerable differences among the various military legal systems surveyed were especially obvious in the areas of the duty of political neutrality and the freedom of association. However, not all of these differences necessarily indicated a general or urgent need for harmonisation. a. Political Neutrality All of the states studied require a certain neutrality with regard to the political activities of their soldiers. While the scope of the duty of neutrality within the armed forces is largely equivalent in all states, the duty of neutrality with respect to activities outside duty hours varies greatly. Three groupings of states may be distinguished: France, Poland, and Spain treat the military as "La Grande Muette" - the Great Mute. In these states, the political neutrality of soldiers is actually a constitutional value. Belgium, Italy and the United Kingdom take a more moderate position, and in Denmark, Germany, and the Netherlands, political activity outside of the service is not only tolerated, but actually (to a certain extent) encouraged. In concrete terms, this means the following: in Poland and Spain, soldiers must abstain from every political activity both on and off duty. Membership in political parties is prohibited. This is also the case in France, although French soldiers are allowed to express political opinions as long as they are offduty and have obtained the permission of the Ministry of Defence in advance. In Belgium, soldiers may be members of political parties only in the capacity of a technical expert. If they do engage in political activities, they may not indicate or use their status as soldiers. In the UK, soldiers have the same scope of rights as civilians to be active in politics, on the condition that the activities do not violate any provisions of military criminal law, including, for example, the good conduct rule. Soldiers may be members of political parties, but are not allowed to take an active role in the party's organisation or activities. In Denmark, Germany, and the Netherlands, soldiers have the right to be active in politics in their off-duty hours. This includes membership and activities in political parties. In Denmark, the soldiers are not even obligated to be particularly loyal to the democratic system. Their activities are limited only by

6

Georg Nolte and Heike Krieger

the provisions of military disciplinary/criminal law. In the Netherlands, soldiers are even permitted to prepare and take part in demonstrations on military installations, as long as the permission of the responsible authorities has been obtained. The rights to vote and to stand for office are intimately tied to the question of political neutrality. Soldiers in all states under study have the right to vote. Technically, they all have the right to stand for office, as well, but there are significant practical difficulties involved in the form of incompatibility provisions (inter alia), especially in France and the UK. In France, soldiers who would like to become a member of parliament or of a local assembly must take unpaid vacation during their time in office. Since the local assemblies, at least, are not able to reimburse their elected officers sufficiently, in practice this means that soldiers do not become local elected officials. In the UK, the House of Commons (Disqualification) Act 1975, s.l (c) forbids the membership of a soldier in the Lower House. The soldier who wishes to stand for office in the House of Commons must offer to resign. That resignation will be accepted only if the needs of the service allow it. If the candidate is unsuccessful, he has no right to resume his former place in the armed forces. The different specifications for the political neutrality of the soldier are based to a significant extent on historical experience. From the German perspective, it is interesting to note that the limitation of soldiers' political rights in other post-authoritarian states is supposed to serve to strengthen democracy: in Spain, the military's frequent political interventions of the nineteenth and twentieth centuries prompted the authors of the 1978 Constitution to codify a strict political neutrality in that document. In the 1970s, the youthful Spanish democracy considered it a matter of life and death to restrict the political rights of soldiers to a great degree. In Poland, too, the duty of political neutrality is designed to secure democracy. These attitudes are in direct opposition to the German attempt to style the soldier as the citizen in uniform, who takes on his responsibilities as a citizen - including those of political activities outside the realm of duty. However, it is not likely that the various regulations regarding the political neutrality of the soldier will stand in the way of cooperation in multinational units for long. There are already signs that the restrictive stance in those states with strict political neutrality is changing, and also that these states see in their insistence on neutrality a peculiarity of their own constitutions, which does not necessarily need to be replicated in the structures of the multinational units. In 2002, the Constitutional Court in Poland, decided on a case in which the Polish Ombudsman challenged the constitutionality of the prohibition on membership in political parties. However, the court considered the rules on political neutrality to be in conformity with the constitution. In Spain, the rule on politi-

European Military Law Systems - Summary and Recommendations

7

cal neutrality is considered to be an essential provision for the survival of the states' constitutional structure, but it is not considered to be an issue that should hinder cooperation with multinational units. The purpose of the Spanish regulation is to prevent the armed forces and their unique clout from interfering with the political life of the state. In Germany, on the other hand, the regulations on political neutrality serve the purpose of ensuring camaraderie and mutual respect among the troops, which in turn serves to preserve the discipline and functional capacity of the armed forces. b. Freedom of Association A further important difference in the area of guaranteeing fundamental rights are the regulations regarding the freedom of association. This is true particularly with respect to the question of whether soldiers have the right to join professional or trade associations (i.e. unions). Here, too, two different basic approaches can be distinguished: In Belgium, Denmark, Germany, Luxembourg, the Netherlands, and Poland, soldiers have the right to form trade and professional unions and to take part in their activities. On the other hand, soldiers in France, Italy and Spain are absolutely forbidden to form or join such organisations. In these states, the dominant conviction is that the activities of professional organisations mitigate the discipline and loyalty of the armed forces. It is rather the place of the responsible commanding officer to protect the interests of the soldiers in his or her care. In multinational units, the activities of soldiers in unions may very well lead to tensions with those soldiers for whom such activities are strictly forbidden. A middle road has been taken by the United Kingdom, in which membership in professional organisations is prohibited by the Queens Regulations, but soldiers may remain or become members of civilian trade organisations. This is allowed partly in order to ease the transition back into civilian life. On a political level, one will notice that in those states where membership in professional organisations is prohibited, criticism of this policy is growing. At a meeting of EUROMIL, members of the French Parliament showed open interest in the German model of regulation and specifically in the Deutscher Bundeswehrverband (the German Association of the Federal Armed Forces). Moreover, in those states in which the representation of soldiers' interests in the framework of a professional organisation is forbidden, some functional equivalents have been allowed through other forms of worker participation. Spain and France have both passed laws regarding official representatives for soldiers' interests. Given the direction of the political movement which seems imminent in this area, harmonisation measures at an international level may in fact be premature at this point in time.

δ

Georg Nolte and Heike Krieger

5. Duties of Soldiers There does not seem to be a need for harmonisation in the area of soldiers' duties. The duties having an impact on the esprit de corps are to a large extent similarly regulated in the various military legal systems. The few anomalous regulations tend to spring mostly from peculiar historical experiences or political circumstances, indicating that they would be very resistant objects of harmonisation attempts. One might want, on political grounds, to consider the possibility of following the examples of Luxembourg and the Netherlands, where the duties of soldiers serving in international units are actually precisely defined in law. In Spain, too, many particular - often symbolic - indications of the duties of soldiers in international units or deployments are to be found in the Royal Ordinances for the Armed Forces (OR). By contrast, these considerations are not manifestly present in section 7 of the German Law on Soldiers. The question of soldierly duties respecting multinational units or in the context of multinational deployments is of particular interest. The (European) Council Decision of 25 June 2001 on the rules applicable to national military staff on secondment on the General Secretariat of the Council in order to form the European Union Military Staff (2001/496/CFSP), creates a multitude of special duties toward the Council enumerated in its Article 7. The transferred member of the armed forces must restrain himself from every action, and particularly from every public expression of opinion, which might detract from the reputation of his office. Furthermore, he has a particular duty to be discreet and to refrain from publishing sensitive information. A draft for a common disciplinary code for the armed forces of the European Defence Community (the project of 1952) formulates these obligations even more precisely. Article 39 of this draft code forbids soldiers to publish texts, hold public lectures, or to speak on radio shows in any context in which the reputation or the capability and readiness of the European armed forces or the individual partner states could come under discussion. Since indiscretions have often caused problems in multinational operations, it might be worthwhile to consider whether a similar passage might be adopted for multinational units or operations.

6. The Power of Command and the Duty to Obey The question of command and obedience is of central importance to every system of military law. Special attention must be paid to this issue in multinational structures. Significant differences among the examined states are to be

European Military Law Systems - Summary and Recommendations

9

found in this area, and conflicts between the various military codes of justice are likely to arise here. In the UK, the soldier's duty to obey extends only to lawful commands. In Denmark, Italy and France, soldiers are obligated to refuse to obey all manifestly illegal orders. In addition, they have the right not to follow other illegal orders. In Belgium, Germany, Luxembourg, the Netherlands, Poland, and Spain, soldiers are obligated to refuse obedience to any order which would require committing a criminal offence. Although soldiers in the Netherlands have the right to disobey all illegal orders, soldiers in Germany, Luxembourg, and Spain have the right to disobey only those illegal orders falling within a stricter definition, including for instance those commands which violate human dignity. The differing national regulations on this issue could definitely lead to conflicts in multinational structures. Superior officers in multinational units have at present no right to issue real orders to their subordinates, and complete integration does not exist. As a result, the following suggestions can, for the moment, only apply to the levels of the higher ranks. These suggestions are, nonetheless, directed by the consideration of future developments, including the likelihood that command authority or a functional equivalent thereof will be conferred on foreign commanders. Two examples may illustrate the difficulty: A German officer orders a British soldier to cross a red traffic light with his vehicle. According to German law, this order would be illegal but still binding, while according to British law (the Army Act 1955) it is illegal and non-binding. Since the British soldier is obligated to act according to British law, he must refuse to carry out the order which, according to German law, he is obliged to obey. A Belgian officer orders a German soldier to clean the floor with a toothbrush. According to German law, the soldier would have the right to refuse any order which violated human dignity, even if the order did not require him to commit a punishable offence. A Belgian commander, however, would expect the order to be carried out, because according to Belgian law, soldiers have no right to refuse to obey such orders as they do not seem to lead to a criminal offence. It is possible that these differences would not intrude significantly in the everyday practice of multinational units, but in principle there exists a need to harmonise these regulations. One possibility would be to adopt a common text in the international agreement creating a multinational unit. Such a text would have to be so composed as to be acceptable for all involved states from the viewpoint of the soldiers' reliance interests. The complete adoption of the British approach (which in theory accords best with the model of the citizen in uniform) seems to be a step too far. According to the German understanding, at least, the commander is responsible for the legality of the order. Soldiers expect to be able to follow a command

10

Georg Nolte and Heike Krieger

except when it would lead to the commission of a criminal offence. It is possible that a text which would obligate soldiers to refuse to carry out orders which would manifestly require committing a criminal offence, and at the same time give them the right to refuse any illegal order, would be internationally acceptable. Such regulations can be found in Denmark, the Netherlands, and France. Such a text might read as follows: "The soldier is obligated to obey his superior. The soldier is obligated to refuse to obey a command, if that command manifestly requires the soldier to commit a punishable offence. The soldier is not obligated to obey illegal orders." Such a proposal would mean that the superior would continue to carry the burden of responsibility for the legality of the order. In a multinational unit, however, the commander could no longer expect soldiers to obey an illegal order. The fact that Denmark, France, Italy, the Netherlands, and the United Kingdom all have such rules shows that such a model does not dilute the punch of the armed forces. However, it remains questionable whether such a regulation would be politically acceptable to Belgium and Poland, since it grants soldiers wider discretion for disobeying orders than either of these states allows. Since such a text would change the legal position of soldiers in Belgium, Germany, Poland, and Spain to the extent that it increases their risk of committing an illegal act by disobeying an order, it would have to be an integral part of an international treaty which is ratified by parliamentary statute. The UK, which (at least in theory) places many more obligations on its soldiers could retain the option of pursuing violations of its disciplinary laws according to national regulations. In the end, however, it cannot be overlooked that even this suggestion for harmonisation would not bring about full or real harmonisation, because the question of what kind of behaviour constitutes a punishable offence will continue to be a matter of national law. The legal systems of the various states under study contain differing catalogues of offences punishable under civil and military criminal law.

7. Working Time, Compensation for Overtime, and Leave The regulations on working time, compensation, recovery-leave, and emergency leave differ significantly from each other in several ways, both in principle and in practice. The model of the constant availability and readiness of the soldier, as it is understood in France and Spain, stands in stark contrast with the model in Denmark or the Netherlands, where the rules affecting soldiers are closer to common labour law. The more intensive the integration of multinational units, the more salient the differences of the various military legal orders become - especially in the

European Military Law Systems - Summary and Recommendations

11

area of the rules governing every-day work practice. Therefore it should be carefully considered whether special regulations for multinational units regarding working time, compensation, and leave should be created. In German law, this would mean that a special text would need to be inserted into the appropriate ordinances, which simply indicates that certain provisions of German law do not apply to soldiers in multinational units. The Netherlands already uses such an approach.

8. Administrative Appeals Law A harmonisation of the rules governing administrative appeals might make sense with respect to multinational structures, in order to give the soldiers, who, if they are in the same unit, must carry out the same orders and undertake the same risks, a single course of action to follow in case of abuse. A soldier could easily feel himself disadvantaged or disenfranchised by the behaviour of a foreign commander or fellow soldier. The higher the level of integration among the troops, the greater the danger that the soldiers' access to protections for their rights will be curtailed. This is especially true if the soldiers do not have access to a process of defending themselves against the behaviour of their foreign counterparts. Thus, it is necessary to consider possible solutions to this problem. An easily realisable measure would be to open the national system of administrative appeals law to foreign soldiers. If this were to be conditioned on reciprocal openness, this would create the possibility that a soldier could appeal against the behaviour of his foreign superiors or fellow soldiers. In order to afford the soldiers a comprehensive system of protection for their rights, the possibility of institutional representation in these cases should be created for multinational units. The legal position of German soldiers would in fact still not be attained, to the extent that neither Belgium, Italy, nor the United Kingdom allows soldiers the possibility to appeal against the behaviour of peers (as opposed to superiors). If one were to attempt more far-reaching measures, it would have to be done through the creation of a common multinational administrative appeals system. With respect to the office of Ombudsperson, the wishes of the German Ombudsperson for Defence that any national Ombudsperson also have the right to investigate the activities of multinational units, should also be considered. This could be accomplished on the basis of an international agreement. The clause would have to make clear that the Ombudsman's authority extended only to the actions of soldiers of his own state participating in multinational units. Moreover, a call for cooperation with foreign Ombudspersons could conceivably be included. As long as the nondisclosure regulations were strictly

12

Georg Nolte and Heike Krieger

observed in such relations, such a clause should be acceptable even to France and the UK.

9. The Law of Institutional Representation The question of institutional representation is also an area revealing significant differences among the various military legal systems. Since Germany exhibits the system with the most far-reaching rights, it is probably not the best model for compromise. A better possible harmonisation model might be found in the Dutch system. The Dutch approach would suggest that a regulation should be inserted into the laws on institutional representation which suspends the applicability of the law to those units which are operating outside the respective borders or are under the orders of foreign officers. It might be much harder to come to agreement even with the states which already have some form of institutional representation on a common form which could be adopted for multinational units. For Germany, this sort of agreement is likely to be reached with the Netherlands before it is reached with any other state.

10. Disciplinary Law Some of the most significant differences are to be found in the areas of disciplinary and criminal law. It should be noted in this context that Denmark and the United Kingdom are unique among the surveyed states, in that they make no distinction between disciplinary and criminal law. Thus, in these states, there is a unified sanctions system for all violations of military legal duties. Present practice for dealing with soldiers who commit a disciplinary offence while participating in multinational units or operations is to remove them from the multinational structure, send them back to their sending state, and allow them to be disciplined according to their own national military disciplinary law. In spite of very different catalogues of infractions and sanctions, few major problems with this method of operation have arisen. However, if integration continues apace, a need for harmonisation could indeed raise its head. According to reports, commanding officers in multinational operations often find it a handicap to have to take recourse to the national commander in order to keep proper discipline in the ranks. It should also be taken into consideration that the responsible disciplinary superior is not, in all military legal systems, always also the immediately responsible superior. The disciplinary superior is not even always present or active in the multinational unit, and may not even know the soldier involved. For this reason the Spanish have introduced a text into their

European Military Law Systems - Summary and Recommendations

13

disciplinary law that declares the commanding officer of whatever troop unit finds itself taking part in multinational operations to be the disciplinary superior for those troops. Several possible harmonisation measures suggest themselves. First, the foreign commander could be granted a right to be present in national disciplinary proceedings, so that the interests of the multinational unit can be brought to bear on the proceeding. Second, a way could be chosen which reaches more deeply into the framework of the legal systems of the partner states. If in fact such a course seemed politically necessary or desirable, a special disciplinary procedure process could be implemented for multinational units enjoying a high degree of integration. Such a process should not, however, be of a nature to require changes in the respective constitution. In a few states, the transferrai or contraction of sovereign rights would require a constitutional amendment. A need to transfer sovereign rights could be avoided by composing the new rules in such a way that they are oriented on the distinction between "full command" and "operational command" which is customary in the practice of transferring command authority. Under this distinction, the exercise of disciplinary authority by a (foreign) commander of the multinational unit would have to be subject to the interference of the national commander, and be validated through a national authority. The competence to make final decisions on disciplinary measures would remain with the national authorities. Such a rudimentary sanctions system could regulate several different aspects of the disciplinary process: a. Elements of Disciplinary

Infractions

The possible objects of a multinational disciplinary procedure should comprise only a very short list. It should relate to the typical minor and moderate disturbances in the course of everyday life of the multinational unit, which can be rectified by means of a relatively swift reaction. More serious infractions should not be included in multinational disciplinary law, and should continue to be handled only by the national authorities. A comparison of the general duties of soldiers in the various states under study shows that they are largely similar. Duties which are the results of particular historical experiences - such as the duty of loyalty to the German political system - should certainly be kept out of any multinational disciplinary law. The following typical infractions, on the other hand, seem to be appropriate material for a common disciplinary procedure: -

deliberate absence from duty without official leave disobeying a command infractions of the duties of discretion and honesty

14 -

Georg Nolte and Heike Krieger

infractions of military discipline and order unbecoming conduct misconduct in the course of sentry or guard duty

It should, of course, remain at the discretion of the national authorities to pronounce further sanctions which are compatible according to national law with the sanctions imposed by this system. This would apply especially with respect to the applicable criminal law which, in Germany and several other states, runs parallel with the disciplinary law. Regulations on any fines assessed would remain a matter for national law. b. Disciplinary Superiors A multinational disciplinary system would also have to specify the responsible disciplinary superior. The comparison of the various systems does not provide a uniform pattern with regard to how to do this. In general, commanding officers hold disciplinary power, but disciplinary supervisors often do not have the same rank. The responsible disciplinary authority could be responsible for the imposition of all disciplinary measures, as in the UK, or different superiors could be responsible for different disciplinary measures, depending on the rank/ category of the offender and the desired measure, as in Germany. The draft of a common disciplinary code for the armed forces of the European Defence Community includes specifications (in Articles 62-67) on how the disciplinary superior is to be determined.

c. Procedure and Appeals Every disciplinary procedure in a multinational framework must fulfil the basic requirements set forth in the procedural regulations of the partner states. These include firstly the investigation of the facts by the disciplinary superior or another authority responsible for that undertaking. The accusations must be communicated to the suspect in writing, and the soldier must have the opportunity to respond to the accusations. The national disciplinary superior must be promptly informed of the initiation of a disciplinary procedure. Further, the soldier must be granted a legal assistant or other assistant from the armed forces, through the elected representative ( Vertrauensperson) if necessary. After an oral hearing, the (foreign) disciplinary superior should impose the sanction without further delay. The national disciplinary superior should have at all times the right to transfer the proceedings ex officio to his own authority if he believes that national interests are at stake. Finally, the system should include a clause (such as the one in Article 75 of the draft of a common disci-

European Military Law Systems - Summary and Recommendations

15

plinary code for the armed forces of the European Defence Community) which allows the execution of the punishment imposed by the disciplinary superior to be suspended in the event of hostilities. In order for the system to avoid the need for the transfer of sovereign rights, the decision to enact punishment must be validated by a national authority in order to confer legal effect on it. All national appeal routes would then, of course, be open against this kind of action. This suggestion naturally involves the danger that it will complicate the disciplinary procedural law and thus vitiate its own goal of strengthening discipline in multinational units through simple measures taken on-site. How likely this danger is to emerge would depend on the exact form and administrative practices of the system. d.

Sanctions

Although the catalogues of punishable offences in the various military disciplinary codes are largely similar, the punishments considered appropriate for each of them differ widely from state to state. Only a few out of the countless conceivable sanctions are similarly envisioned in the laws of the states under study. Among them are: the reprimand, the restriction of free movement, and arrest. The draft for the common disciplinary code for the armed forces of the European Defence Community had already taken this result into account: Article 52 laid down the permissible disciplinary punishments for the European armed forces, and they would have been restricted to various forms of reprimand, confinement to barracks, and arrest. As long as common disciplinary measures must be implemented without a transferrai of sovereign authority, the following must be kept in mind: from the German point of view at least, a judge must be involved in the imposition of the punishment of arrest. Thus, the only sanctions which could be available to an international disciplinary superior would be the reprimand and the restriction of free movement. Even these sanctions presuppose agreement on a common conception, because here, too, significant differences appear. In France, only officers can be reprimanded. In Belgium, only conscripts can be subject to a restriction on their freedom of movement. Several states, including Spain, consider a simple warning to be a disciplinary measure. Even the permissible maximum length of time of the restriction on free movement varies. In the Netherlands, it may not last for more than four days in a row, while in Spain, it can run for eight days. In Denmark, it can last for up to two weeks. The regulation in Germany, which allows such a restriction to last up to three weeks, has no parallels in other legal orders. In the draft of a common disciplinary code for the armed forces of the European Defence Community,

16

Georg Nolte and Heike Krieger

the parties managed to agree in Article 54 that the maximum length of time for such restrictions should be limited to one week, and in Article 55, that a complete prohibition on free movement (house arrest) may last for up to two weeks. In addition, certain disciplinary measures are obviously less appropriate for certain multinational operations. This is true, for example, of restrictions on freedom of movement in the context of operations in crisis areas. For this reason, the Netherlands have, as an express legal measure substituted a higher monetary fine as a disciplinary measure in the context of multinational operations. For a multinational disciplinary procedure, the idea of a monetary fine as a disciplinary action might be a prudent consideration. It is also worth mentioning that Article 59 of the Draft Common Disciplinary Code of the European Defence Community foresaw that it might be better to replace arrest with a reduction or cancellation of war-bonus-pay, if it would be impossible to implement an arrest - for example during hostilities. Since the pay levels of the participating soldiers are likely to differ significantly, one may have to consider implementing a daily rate system. It must also be considered that not all states in the study are already familiar with the use of monetary fines as military disciplinary sanctions. In Belgium, Italy and Spain, the imposition of such a punishment would be considered incompatible with the notion of soldierly honour. In any case, the imposition of instructional measures in multinational contexts also seems to be particularly inappropriate, since the acceptability of such measures would be highly conditioned by historical and social contexts. The creation of a common disciplinary code, as it was embodied in the Draft Common Disciplinary Code for the Armed Forces of the European Defence Community, is only possible through the transferrai of sovereign authority to an inter-governmental institution. If multinational units were to be organised in this form, the Draft Common Disciplinary Code represents an important starting point for that process, since it still - despite its date of origin - reveals a few similarities between of the various military legal orders involved in this study.

11. Military Criminal Law The goal of the regulations in disciplinary law, namely ensuring the functional capabilities of the armed forces, should also be attainable on a multinational level through a disciplinary authority unique to the multinational Commander. In contrast, however, there is no comparable need in the field of military criminal law. Firstly, the goal of criminal law is to determine individual guilt. More-

European Military Law Systems - Summary and Recommendations

17

over, violations having criminal relevance are as a rule so serious that the soldier involved is by common practice removed from the multinational unit and sent home to be tried there. Finally, harmonisation efforts are confronted with the special problem that military criminal law is always lex specialis to general criminal law. Every suggestion for harmonisation would therefore also have to take into account the retroactive effects on the general criminal law of the given legal system. Harmonisation in this area, then, could be implemented only with great difficulty.

12. Guard and Sentry Duty With respect to the question of the use of weapons on guard or security duty, three different systems of regulation could be distinguished: those where the use of force against civilians is comprehensively regulated by a statute, those where the concrete form of the competencies of the guard are regulated on the level of ordinances, but the right to use firearms is based on general criminal law, and finally those which provide no circumscribed preconditions, but rather envision only an ex post justification through means of general criminal law. The greatest difficulties arise with respect to the United Kingdom. The assumption there that a comprehensive circumscription of the pre-conditions defining the permissible use of a firearm is not legally possible is diametrically opposed to the German system. In terms of possibilities for harmonisation, it is clear that the exercise of guard and sentry duties as it works, for instance, in the German-Dutch relationship, would be very difficult to achieve with other states, because it involves the question of a transferrai of sovereign authority. In Belgium and Denmark, at least, the transferrai of guard and sentry duties to German soldiers, or the perception of carrying out guard duties under German command would be considered as the transferrai of sovereign authority to another state, and would raise serious problems of constitutional law in both states. Admittedly, it appears questionable whether the common performance of guard and sentry duties should be uniformly regulated without addressing the issue of exercise of sovereign authority. This could happen within the framework of rules of engagement. In view of the principle of proportionality, which is enshrined in all of the legal codes under consideration, that principle may serve as a guide for the concrete design.

Chapter 2

Comparison of European Military Law Systems Georg Nolte and Heike Krieger

Table of Contents I. The Historical and Political Backgrounds of the Different Military Law Systems 1. Parliamentary Control and the Dignified Role for the Individual Soldier a. Small Traditional Democracies b. Large Traditional Democracies c. Post-authoritarian Democracies 2. Democratic Control and Rights and Duties of Soldiers a. The Constitution b. The Government c. The Public II. Basic Rules Concerning the Use of Armed Forces 1. General Constitutional Framework 2. The Mission of the Armed Forces a. Mission Provided for the Constitution b. Mission Defined in a Parliamentary Statute c. Mission Defined by Way of a Governmental or Administrative Act . . 3. Permissible Operations a. Crisis Management Abroad b. Humanitarian Aid at Home and Abroad aa. Humanitarian Aid Missions Abroad bb. Humanitarian Aid Missions at Home c. Combined Operations with Civilian Aid Organisations d. Cooperation between the Armed Forces and Other Governmental Authorities e. States of Emergency at Home f. Natural Disasters or Humanitarian Catastrophes at Home g. Evacuation of a State's Nationals h. Use of the Armed Forces in Other Cases 4. Limitations on Operations Undertaken Jointly with the Armed Forces of Another State III. Constitutional Powers 1. The Position of the Head of State a. Monarchies b. Parliamentary Republics c. Presidential Systems

23 23 24 25 26 29 29 30 31 32 32 34 34 35 38 39 39 41 42 42 44 44 45 48 48 49 50 51 51 51 53 54

20

Georg Nolte and Heike Krieger 2. The Powers of the Government a. The Six Monarchies and their Parliamentary Systems b. The Parliamentary Republics (Germany and Italy) c. The Presidential Systems in Poland and France 3. The Participation of Parliament in the Decision to Deploy the Armed Forces a. The Prerogative to Declare War and States of Emergency b. The Decision on the Deployment of the Armed Forces aa. Denmark: A Limited Right of Parliamentary Approval bb. Germany and Italy: A Comprehensive Requirement of Parliamentary Approval ce. States with a Constitutional Duty to Inform Parliament c. States with no Constitutional Duty to Inform Parliament 4. The Functions of the Minister of Defence 5. The Role of the Military Leadership 6. Parliamentary Control a. The Parliament's Power to Control the Armed Forces aa. Parliamentary Committees and Questioning bb. Censure cc. Budget dd. Power to Legislate b. Special Forms of Parliamentary Control over the Military, Ombudspersons c. Court of Auditors and Comparable Institutions IV. The Structure of the Armed Forces 1. The Armed Forces and their Administration 2. Involvement of the Civilian Administration in the Process of Procurement of Material and Supplies V. Soldiers'Rights and Duties 1. Restrictions on Fundamental Rights of Soldiers a. General Aspects b. Political Neutrality of Soldiers aa. Highly Restrictive Policies of Political Neutrality bb. Moderately Restrictive Policies of Political Neutrality cc. Least Restrictive Policies of Political Neutrality dd. The Right to Vote and Stand for Elections c. Freedom of Association d. Conscientious Objection e. Equal Treatment aa. Gender bb. Sexual Orientation cc. Race f. Other Fundamental Rights and their Restrictions 2. Legal Obligations of Soldiers a. The Use of General Clauses b. The Specific Duties 3. The Power of Command and the Duty to Obey a. Different Models for the Duty to Obey b. Limitations of the Duty to Obey aa. Purposes of the Military Service

56 56 57 58 58 58 60 61 61 62 63 63 66 66 67 67 68 68 68 70 71 72 72 73 74 74 74 77 78 79 80 81 83 85 86 86 87 88 88 90 91 92 93 93 94 94

Comparison of European Military Law Systems bb. Infringement of the Human Dignity of Soldiers cc. Law of the Host Countries c. Exculpation d. The Duty to Obey in Spain 4. Social Rights of Soldiers and their Families a. Social Rights in General b. Free Medical Care 5. Rules Governing Working Time a. Working Time and Compensation for Overtime b. Recreational Holidays and Special Leave 6. Legal Remedies, in Particular Rights to File a Complaint a. Rights to File a Complaint aa. Belgium bb. Denmark cc. France dd. Germany ee. Italy ff. Luxembourg gg. Netherlands hh. Poland ii. Spain jj. United Kingdom b. Complaints to the Ombudsperson c. General Right to Petition d. Protection of the Right to File a Complaint e. Complaint about Fellow Soldiers f. Comparison 7. Institutional Representation VI. The Relationship of the Superior to Subordinate Personnel 1. Legal Rules Concerning the Relationship Between Superior and Subordinate a. Definition b. Duties of the Superior 2. Subordination of Soldiers to the Command of a Superior of Foreign Armed Forces a. Belgium b. Denmark c. France d. Italy e. Luxembourg f. The Netherlands g. Poland h. Spain i. The United Kingdom j. The Specific Problem of the Danish Participation in EU-led Multinational Operations VII. Sanctions 1. Disciplinary Law a. Disciplinary Power b. Relation to Criminal Law

21 95 95 95 96 97 97 99 101 101 104 105 105 105 106 106 107 108 108 108 109 110 110 Ill Ill Ill 112 113 114 116 116 116 118 120 123 123 124 125 125 125 127 127 128 128 129 130 131 133

22

Georg Nolte and Heike Krieger aa. The Cumulative Application of Disciplinary and Criminal Law . . bb. Mutual Recognition of Disciplinary and Criminal Sanctions . . . c. The Purpose of Disciplinary Law d. Disciplinary Measures aa. Warning/Admonition bb. Reprimand cc. Confinement to Barracks dd. Fines ee. Arrest fT. Reduction of Pay gg. Reduction in Rank hh. Dismissal from the Armed Forces ii. Prohibition on Promotion jj. Temporary Suspension from Service or from Rank kk. Educational and Other Penal Duties e. Disciplinary Law and the European Convention on Human Rights . . aa. Denmark bb. France cc. Italy dd. Spain ee. The United Kingdom f. Disciplinary Procedure and Legal Remedies aa. Belgium bb. Denmark cc. France dd. Germany ee. Italy ff. Luxembourg gg. The Netherlands hh. Poland ii. Spain jj. The United Kingdom g. Representation of the Armed Forces during Disciplinary Proceedings h. Measures of Commendation 2. Criminal Law a. Military Criminal Legislation b. Applicability to Civilians c. Relation to General Criminal Law d. Military Criminal Courts aa. Overview bb. Individual States e. Relationship between Civilian and Military Courts f. Special Rules with Regard to the Legal Procedure and the Sanction System g. The Military Prosecutor h. Justification by Superior Orders i. Sanctions for Non-Compliance with International Humanitarian Law j. Ratification of the Rome Statute of the International Criminal Court

133 134 135 136 136 136 137 137 138 139 139 139 140 140 140 141 141 141 141 142 143 144 145 146 147 148 149 150 151 152 152 153 154 155 156 156 157 159 160 160 160 165 166 168 171 172 175

Comparison of European Military Law Systems VIII. Regulations Governing Guard Duties 1. Powers of Guards towards Military Personnel as well as towards Civilians 2. Performance of Guard Duties by Soldiers of Foreign Armed Forces . . . 3. Rules Concerning the Carrying and the Use of Arms and Other Military Equipment IX. Legal Reforms 1. Pertinent Legislation a. Overview b. Legislation c. Non-legislative Measures and Reform 2. Probability of Future Reforms 3. Academic Discussion

23 175 175 176 176 178 178 178 179 180 181 182

The following synthesis proceeds from general questions concerning the background of the different military law systems, and then moves to constitutional issues and to more specific questions of administrative law.

I. The Historical and Political Backgrounds of the Different Military Law Systems 1. Parliamentary Control and the Dignified Role for the Individual Soldier It is not easy to categorise and summarise the different historical and political circumstances which have influenced the various military law systems under review. In particular, it would seem hardly possible to classify the legal systems under review according to the concept of "legal families" (Rechtskreise) (e.g. Anglo-Saxon, Germanic, Roman, Scandinavian, Slavic), a concept which is sometimes used in comparative law studies. There exist significant differences between the "Roman" military law systems of France, Italy and Spain, whereas the military legal systems of France and the United Kingdom have much in common, due to their strong orientation towards the executive and their emphasis on efficiency. Today, it would hardly make sense to talk of a Slavic "legal family", at least with respect to military law. In addition, the concepts of "Slavic" and "Germanic" legal family raise definitional and historical problems (e.g. with respect to the Netherlands and, perhaps, Hungary) which would not be fruitful to address in the context of this study. Despite these difficulties it nevertheless seems to be possible to broadly classify the states under review into three not merely formal categories: small traditional democracies (Belgium, Denmark, Luxembourg and the Netherlands); large traditional democracies (France, United Kingdom) and "postauthoritarian" democracies (Germany, Italy, Poland, Spain). The distinction

24

Georg Nolte and Heike Krieger

between "large" and "small" democracies and the notion "post-authoritarian" do not imply a value-judgement. The notion "post-authoritarian" merely serves to emphasise that the military law system of a particular state has at some point been consciously reformed in the light of significant experiences with a domestic non-democratic regime. a. Small Traditional

Democracies

The four small traditional democracies have many points in common: They all happen to be monarchies with a parliamentary system. Their unbroken constitutional tradition dates back to at least the first half of the nineteenth century. They have all experienced a development according to which the (largest part of) the royal prerogative (which included the realm of the military) was sooner (Netherlands) or later (Belgium) no more considered to be a personal prerogative of the monarch but to depend on the agreement of the government (countersignature by the responsible minister). Until the Second World War all four small democracies followed a policy of neutrality which they abandoned in favour of a policy of alliance within NATO, taking into account the experience of the two German aggressions in the twentieth century. In none of the four small democratic states have the armed forces ever in the past two hundred years played an independent domestic political role. The constitutional loyalty of the armed forces is taken for granted. Their existence is unquestioned and they enjoy broad popular support. Traditionally, the constitutions in these four states do not contain special rules which are designed to ensure the democratic legitimacy of the armed forces or a dignified role for the individual soldier. The constitutional amendments in the Netherlands of 2000, according to which Parliament must be informed before the armed forces are employed "for the maintenance or promotion of the international rule of law" (Article 100 of the Constitution), happen to be an exception. The political process in which this constitutional amendment came about demonstrates that the question of the democratic accountability of the armed forces is not a divisive, or ideological issue but that it is a matter which is being dealt with pragmatically in the Dutch political environment: A parliamentary committee had put forward a demand that Parliament receive the power to authorise military operations abroad which was rejected by the government. Ultimately, a compromise was found according to which the government had the duty to inform Parliament beforehand of military operations "for the maintenance or promotion of the international rule of law" (Article 100 of the Constitution). In Denmark, the special constitutional duty to inform Parliament of military operations (Article 19 of the Danish Constitution) is, in practice, uncontested.

Comparison of European Military Law Systems

25

There are certainly differences between the four small democratic states. Belgium and the Netherlands, for example, due to their history as colonial powers, have more often used their armed forces abroad, while Denmark and Luxembourg have only sent their armed forces to participate in certain U N operations. In addition, the focus in the Netherlands on the issue of the draft and a certain constitutional distrust against the legislature (not the government) in military matters does not seem to find an equivalent in Belgium, Denmark and Luxembourg. Such differences, however, do not seem to be as important for the assessment of the historical and political background of the legal situation as those points which the four states have in common. b. Large Traditional Democracies At first sight, the two large traditional democracies seem to be very different with respect to the historical and political circumstances which have influenced their armed forces and their military law system. While France is a republic (since 1870), the United Kingdom is a monarchy. While France has a presidential system, the executive in the United Kingdom depends exclusively on the confidence of Parliament. While France, since the times of the French Revolution, traditionally conceives the armed forces as an emanation of the nation, the United Kingdom has, for the most part, relied on professional soldiers and not on conscripts. France is a European land power, while the United Kingdom is the classical sea power. At closer inspection, however, it becomes clear that the two large democracies have much in common with regard to the historical and political circumstances of the democratic accountability of the armed forces and with regard to the ensuring of a dignified role for the individual soldier. Both states traditionally lack legal restraints for the executive with regard to the use of the armed forces. In France, the presidential prerogative in military matters has been guaranteed by the Constitution since 1958. The role of the Parliament is reduced to legislating certain aspects of the military and to exercising general parliamentary instruments of control (budget, questioning). In the United Kingdom, Parliament is less restricted and seems to control governmental decisions with respect to the military more actively than in France. Nevertheless, the prerogative of the executive in military matters (which in the United Kingdom derives from the unwritten constitutional rule that the government exercises the royal prerogative) is undisputed in both states in theory and in practice. The strong role of the executive is probably influenced by the traditional role of both states as world powers with global military interests. Flexible internal structures as well as unwritten constitutional law seem to be perceived as preconditions for being able to perform this role.

26

Georg Nolte and Heike Krieger

Another point which France and the United Kingdom have in common is the relative lack of attention which is traditionally given to the role of soldiers and their rights. This may be partly due to the fact that the armed forces have not played an independent political role for quite some time. In France, the armed forces are considered to be "La Grande Muette" (the Great Mute). As the army is traditionally conceived as an emanation of the nation, the single soldier is regarded as a "citizen serving under the flag". In the United Kingdom the involvement of the armed forces in national politics has been out of the question since the 17th century. The primacy of the political system is exemplified by the British constitutional tradition since 1689 of considering the existence of "a standing army" to be exceptional to requiring annual confirmation by an Act of Parliament. In addition it is perhaps the traditional absence of a draft system which explains the comparative lack of attention to the issue of legal rights of soldiers in the United Kingdom. In a professional army every soldier has volunteered and has considered the general conditions to be sufficiently attractive beforehand. Still another factor for this relative lack of attention to soldiers rights may be that they have been taken for granted in the United Kingdom for a long time: As early as 1812 the Chief Justice of England stated in a case that "it is highly important that the mistake should be corrected which supposes that an Englishman, by taking upon him the additional character of a soldier, puts off any of the rights and duties of an Englishman".1 This phrase has often been repeated and it is understood to express the idea that "a soldier is a citizen in uniform". In sum, the two large traditional democracies, despite their different historical experience and their different political systems, have much in common with respect to the political control of the military and the relative unimportance of the legal status of soldiers. c. Post-authoritarian Democracies The historical and political circumstances which have influenced the military law systems of the four post-authoritarian democracies have led to significant differences (compared to the large and small traditional democratic states under review) with respect to the democratic accountability of the armed forces and with regard to the ensuring of a dignified role of the individual soldier. In order to understand the differences between the four post-authoritarian democracies, it is important to see how the historical role of the armed forces was perceived at the time when their respective democratic constitutions were created.

1

Burdett v. Abbott (1812) 4 Taunt, pp. 401, 405.

Comparison of European Military Law Systems

27

After 1989, the armed forces in Poland were not strongly identified with the past authoritarian system in which they had played a loyal, but no strongly ideological role. A large part of the Polish population, including parts of the elite, saw the communist regime as one of foreign domination. It is still a matter of public discussion how the Polish armed forces would have reacted in the case of a Soviet intervention. The relative neutrality of the Polish armed forces may have been reinforced by the fact that Polish troops have, since 1953, served as UN peacekeepers. The regulation of the role of the armed forces was, therefore, not one of the main issues for the new Polish democracy. However, emphasis was put on ensuring the neutrality of the armed forces. In Spain, on the other hand, the armed forces were considered as the centre of the past authoritarian system. At first, they could not be relied upon as being loyal to the new democratic system. They still possessed of a cohesiveness and institutional strength which enabled them to influence the constitutionmaking in favour of the introduction of a general provision which ensures a special dignified role of the armed forces within the Spanish constitutional system. The threat of a coup d'état which persisted for some years after the transition to democratic rule in 1976 led to an uneasy coexistence between the practice of civilian control of the military and independence of the military. In Germany, the armed forces were neither considered to have been at the heart of the past authoritarian system nor were they considered to have been satisfactorily neutral. In fact, the past role of the armed forces had been ambiguous. On the one hand, the independent cooperation of the Reichswehr with the Soviet Red Army during the Weimar Republic had shown that the armed forces had been able and willing to escape from civilian and parliamentary control. On the other hand, the revolt by high Wehrmacht officers in 1944 had demonstrated that the armed forces were the only institution during the Nazi time which was willing and capable to organise serious resistance against the Hitler regime. Another factor which distinguishes the German situation from that of Poland and Spain is the fact that in Germany the armed forces no longer existed at the time of the making of the pertinent constitutional rules. Therefore, these rules could be developed free from existing institutional interests and constraints and be derived from more abstract considerations. The most important among these was the analysis of "what caused" the establishment of the Nazi regime and "how to prevent" the repetition of such an event. The most influential explanation was that the legacy of a monarchical executive had formed the military in an authoritarian spirit and left it largely free of parliamentary control. This had been important for preserving the Reichswehr of the Weimar Republic as an anti-republican institution and providing the ground for the Nazi Wehrmacht becoming a willing instrument of a criminal regime. This explanation led the political majorities which produced the consti-

28

Georg Nolte and Heike Krieger

tutional rules for the new Bundeswehr (which included the social-democratic opposition) to establish a system of strong parliamentary control and the government to favour a doctrine according to which the Bundeswehr should be composed of, and produce, "citizens in uniform", thus preventing the preservation of a mentality of "Befehl ist BefehV ("an order is an order" = an order must be obeyed under any circumstances). The concept of soldierdom "citizens in uniform" implies, inter alia, that soldiers are provided with a legal status which is compatible with the image of a responsible and largely autonomous person, i.e. that his fundamental rights are restricted only as far as military efficiency requires, and that he enjoys the rights to file a complaint and to participate in institutions. In Italy, as in Germany, the armed forces were neither considered at the heart of the past authoritarian system nor were they considered to have been satisfactorily neutral. The Italian Constitution requires that the "order of the armed forces complies with the democratic spirit of the Republic" (Article 52 (2)). Among the most important implications of this democratic-spirit-clause are the duty of the armed forces to remain neutral and the goal that "the Armed Forces, while preserving the principle of unity and discipline ... should never lose respect for human dignity and freedom". Article 52 (2) marks a conscious break with an authoritarian tradition within the armed forces and with respect to their role in society which extends back to before the time of Mussolini. In 1999, the Italian Constitutional Court has held that "the Constitution (Articles 11 and 52 (1)) imposes a conception of Italy's military machinery which is no more inspired by the idea of a powerful position of the state or, as in the past, of a "power state" (stato di potenza, Machtstaat), but by the idea to guarantee the freedom of the people and the integrity of the national order". 2 The developments in Poland and Spain, and to a certain extent in Italy, demonstrate that the break from an authoritarian past does not naturally imply an emphasis on the creation of more (fundamental and democratic) rights for soldiers. This is of particular interest for German observers. In Poland, the primary interest of the new democratic leadership was, at first, to ensure the neutrality of the armed forces which meant the assertion of the power to restrict the fundamental rights of soldiers. After a few years of democratic rule in Poland, the need for this assertion is no longer perceived to be as strong. In Spain, the new democratic leadership was interested in possessing legal means to restrict the powers of the armed forces and it did not insist on interfering to a large extent into the inner functioning (including the education) of the armed

2

Corte costituzionale, Judgement No. 172/1999.

Comparison of European Military Law Systems

29

forces. It is further to be noted, that differences between the legal bases of the armed forces in the different post-authoritarian democracies find an explanation in the fact that the democratic reestablishment of the armed forces in Germany was influenced to a degree by their role in two wars, while in Poland, Italy and Spain the domestic role of the armed forces was a more important factor.

2. Democratic Control and Rights and Duties of Soldiers The role of the armed forces in regard to democratic control and the rights and duties of soldiers can be regarded from the perspective of the constitution, from the perspective of the respective present governments and from the perspective of the public. a. The

Constitution

The constitutions of the different states under review can be classified into two groups. The first group consists of those states whose constitutions contain very few rules which specifically address the armed forces (Belgium, Denmark, France, Luxembourg, the Netherlands, and the United Kingdom). On the constitutional level, these states basically only regulate which state organs have the power to command the armed forces, which organs have the power to declare war, and certain functions of their respective parliaments with respect to the armed forces. They rely on the general constitutional rules in order to determine the status and the functioning of the armed forces (mainly the parliamentary budgetary power, parliamentary control through questions and commissions, and parliamentary responsibility of the government). Such constitutional frameworks take the democratic legitimacy of the armed forces for granted, and they rely on the democratic parliamentary process to appropriately determine the rights and duties of soldiers. The second group consists of those states whose constitutions contain specific rules on the armed forces which evoke or recognise a particular role for them (Germany, Italy, Poland, Spain). It is probably not accidental that this group consists of all the post-authoritarian states under review. Among those states, the German Constitution possesses the most elaborate specific rules to ensure the democratic accountability and legitimacy of the armed forces and to determine the possibilities to restrict the rights and duties of soldiers. The constitutions of Italy, Poland and Spain, on the other hand, put an emphasis on the general role of the armed forces. In Spain, the mission of the armed forces is located prominently among the general provisions of the constitution

30

Georg Nolte and Heike Krieger

(Artide 8). In Poland, the obligation of the armed forces to remain neutral is stressed (Article 26 para. 2). Italy emphasises the democratic character of the armed forces. It is arguable that the Netherlands belong not to the first but to the second group due to a constitutional amendment in the year 2000 which now obligates the government to inform Parliament prior to, or in connection with, "the engagement of the armed forces for the maintenance or promotion of the international rule of law" (Article 100). This provision, however, does not extend to all engagements of the armed forces and, therefore, does not seem to be characteristic of the constitutional role of the Dutch armed forces as such. It rather seems due to specific experiences during the nineties. In summary, the constitutions of the traditional (small and large) democratic states do not elaborately regulate the role of the armed forces in their constitutions and rather rely on the general constitutional procedures for their control. The constitutions of those states presuppose the democratic legitimacy of the armed forces and rely on the general procedures to determine the rights and duties of soldiers. The post-authoritarian states, on the other hand, have more specifically defined the role of the armed forces in their constitutions. Among them, Germany goes furthest in setting up special constitutional rules for the armed forces. The constitutions of the post-authoritarian states set more specific conditions for the use of the armed forces and thereby attempt to enhance their democratic legitimacy. b. The

Government

As of 2003, the governments of all states under review seem to perceive the role of the armed forces as being unproblematic and satisfactory in terms of democratic legitimacy and with regard to soldiers rights. In Belgium, the government's decision to change the army from a conscript to a professional army has not given rise to any public debate over the democratic nature of the military. In Denmark, the government was able to forge a consensus among the major political parties that the Danish armed forces should take up more international tasks and created an "International Brigade" within the Danish armed forces whose members are volunteers (professionals and former conscripts) who have committed themselves to taking part in multinational operations. In France, the situation of the military depends very much on whether a President governs with a supporting or an opposing majority in Parliament, but the political differences have - so far - not called into question the democratic legitimacy of the armed forces. In Germany, the Government is no longer concerned with a possible lack of democratic legitimacy of the armed forces as such, but rather with the question of how to reform particular aspects of it and

Comparison of European Military Law Systems

31

how to secure the necessary authorisation of the Bundestag for certain controversial operations. In Italy, the government is in the process of restructuring the armed forces, including by abolishing the draft by 2007, without engendering significant public opposition. In the Netherlands, the government has successfully resisted demands from within Parliament for a constitutional change to the effect that every engagement of Dutch armed forces in international peacemaking missions should be made subject to parliamentary approval. This controversy has not called into question the democratic legitimacy of the Dutch armed forces. In Poland, one of the main foreign goals of the government was the admission to NATO, which implied recognition and reform of the armed forces. It seems that the introduction of civilian control of the military after 1990 initially proved difficult, but it has been achieved in the meantime. In Spain, the government could not be sure of the loyalty of the armed forces from the beginning of the democratic regime in 1976 until the middle of the eighties. Today, the situation is much more relaxed. In the United Kingdom, the control of the government over the armed forces is so well established that no question exists with respect to their democratic legitimacy. Similarly to the situation in the Netherlands, the British government successfully resisted a recommendation by a Parliamentary Committee "that the Government should table a substantive motion in the House of Commons at the earliest opportunity after the commitment of troops to armed conflict allowing the House to express its view, and allowing the Members to table amendments". 3 After a few lost cases before the European Court of Human Rights, the British government is conscious that the question of soldiers rights may have to be taken more seriously.4 c. The Public It seems that a large majority of the respective public in every state under review perceives the armed forces to be in a satisfactory condition with respect to their democratic legitimacy and soldiers rights. This is true despite the fact that political controversies have surrounded the armed forces in some states. In Belgium the change from a conscript army to a professional army has not provoked much discussion. The same is true for France, Italy and the Netherlands. In Denmark, Luxembourg, Poland, and the United Kingdom the armed forces

3

Fourth Report to the Foreign Affairs Committee,

2000, HC 28-1), at p. ix. 4 See more detailed sub VI. 1. e. dd).

Session 1999-2000, Kosovo (23 May

32

Georg Nolte and Heike Krieger

enjoy full public confidence. It seems that only in Germany, Italy and Spain pacifist and anti-militarist manifestations reach levels which are politically relevant. Such manifestations do not usually concern the role of the armed forces as such but their possible involvement in certain operations.

II. Basic Rules Concerning the Use of Armed Forces 1. General Constitutional Framework With the exception of the United Kingdom, all states under review possess a written constitution. The unwritten constitution of the United Kingdom does not contain specific rules concerning the armed forces. It is generally understood that the armed forces are subject to the "royal prerogative", which means that they are at the disposal of the government which is itself subject to the general forms of parliamentary control. The constitutional rules concerning the armed forces in those states which possess written constitutions may be divided in two groups. The first group consists of those rules which relate to the role and the tasks of the armed forces. The second group comprises those rules which relate to the division of competences of the various state organs with respect to the military. Both kinds of rules will be dealt with specifically below.5 However, one general observation must be made at this point: All states under review (except the United Kingdom) have in common that their constitutions contain rules which somewhat limit the possible uses of the armed forces, but - if compared to Germany - only to a very limited extent. In Belgium, Article 167 (1.2) of the Constitution is interpreted to mean that the armed forces may be used only in accordance with the general rules of public international law. No other limitations exist. In Denmark, no substantive constitutional limitations for the use of the armed forces exist, but Parliament must agree if military force is used "against any foreign state" (Article 19 (2)). In France the text of the current Constitution of 1958 itself contains no explicit limits for the use of the armed forces, but the preamble to the Constitution of 1946 (which is incorporated into the Constitution of 1958) requires that "the French Republic shall not enter into war for reasons of conquest, and shall never use its armed forces against the freedom of any people". This limitation is not considered to be of much practical importance.

5

See sub II. 2.-6.

Comparison of European Military Law Systems

33

In Germany, the Constitution provides for significant limitations of the mission of the armed forces. Apart from self-defence, the German armed forces may only be used according to what is explicitly provided for in the Constitution (Article 87a (2) of the Constitution). Since there are serious differences of opinion over the scope of this provision and over the range of the "explicit" provisions enabling the use of the armed forces, and since these differences of opinion can under certain conditions be brought before the Constitutional Court, there is still considerable uncertainty with regard to the range of possible uses of the German armed forces. In Italy, although the majority opinion does not interpret the constitutional mission of the armed forces to defend the state (Article 52 (1)) as implying e contrario a substantive limitation for other tasks, it is nevertheless understood that the performance of other tasks requires an explicit basis in parliamentary legislation. Apart from the agreement on this point, serious controversies exist in Italy about what types of armed forces missions are constitutionally admissible. These controversies, however, do not seem to have much practical importance, since it appears to be practically impossible to seize the Constitutional Court on such questions. In Luxembourg, the mission of the armed forces is not defined in the Constitution. The Constitution only contains a rule (Article 37) according to which the Grand Duke needs the approval of parliament (by two thirds majority) for the declaration of war and the end of war. In the Netherlands, the tasks of the armed forces are explicitly outlined in Article 97 of the Constitution and include "the defence and the protection of the interests of the Kingdom, as well as the maintenance and promotion of the international rule of law". Although the task of protecting of the international rule of law was included by a constitutional amendment in the year 2000, it has been judicially clarified that the previous version of Article 97 did not exclude the use of the armed forces for peacekeeping missions. There seems to be agreement in the Netherlands that Article 97 of the Constitution permits all operations abroad which are "in the interest of the State". In Poland, Article 26 (1) of the Constitution defines the task of the armed forces as being "to safeguard the independence and the territorial integrity of the State and the inviolability of its borders". As in the Netherlands, this positive definition is not considered to substantially restrict the possible uses of the armed forces, in particular not to prevent the use of the armed forces for peacemaking missions. This conclusion is fortified by Article 117 of the Constitution according to which the rules concerning the use of the Polish armed forces abroad are to be specified in a ratified international treaty or in a statute. In addition to Articles 26 (1) and 117, the Polish Constitution requires in its Article 26 (2) that the armed forces be neutral on political matters, and in Article 85 (1) decrees the duty of every national to defend his/her homeland. Spain is the third state under review

34

Georg Nolte and Heike Krieger

(besides Germany and Italy) in which the general constitutional provision which describes the role and the task of the armed forces has given rise to serious controversies: Article 8 (1) of the Spanish Constitution states that "the armed forces ... have as their mission the guarantee of the sovereignty and independence of Spain, and the defence of its territorial integrity and constitutional order". 6 Article 87a (2) of the German Constitution states that "other than for defence purposes, the armed forces may only be employed to the extent explicitly permitted in the Grundgesetz". This includes operations within the framework of "systems of mutual collective security". In short, in all states under review, except Germany, Spain, and (possibly, but then only theoretically) Italy, the constitutional rules provide only very slight, if any, substantive limits to the possible uses of the armed forces.

2. The Mission of the Armed Forces The states under review can be classified according to whether they define the mission of their armed forces on the constitutional level, or on the level of a parliamentary statute, or solely by way of governmental or executive acts. a. Mission Providedfor the Constitution Germany, Italy, the Netherlands, Poland, and Spain have defined the missions of the armed forces on the constitutional level. In Italy, the Netherlands, and Poland these definitions are interpreted so broadly that they hardly place substantive limits on the use of the armed forces. Thus, in Poland, the Constitutional Court decided in 2000 that Article 26 (1) of the Constitution ("Armed Forces are to safeguard the independence and the territorial integrity of the State, and to ensure the security and inviolability of its borders") does not exclude that the armed forces "also play an important role in assuring the State's internal security, although their involvement here might turn out to be of an auxiliary character". 7 It appears to be undisputed that the aims and tasks of the Polish Armed Forces, as they are described in Article 3 (1 a) of the Polish Defence Act of 1967, as amended in 1997, and by Article 2 of the Statute on the Employment and Stationing of Polish Armed Forces abroad of 1998

6 7

More details sub II. 3. a) - h). Trybunal Konstytucyjny, Judgement No. Κ 26/98 of 7 March 2000.

Comparison of European Military Law Systems

35

(ZUPSZ) are constitutionally permissible.8 It is less clear whether certain domestic missions of the armed forces, which are defined in the Police Law of 1990 in its amended version are in accordance with the constitution.9 The situation in Italy is comparable to that in Poland. While Article 52 (1) of the Italian Constitution only speaks of "the defence of the Fatherland" (in connection with the duty of citizens to serve) and Article 11 contains a war-repudiation and a limitation-of-sovereignty clause, these provisions are in constitutional practice not considered to significantly limit the power of parliament to attribute additional missions to the armed forces. This means that, in practice, Italy is a state which defines the mission of its armed forces by way of a parliamentary statute. It is true that a significant and very diverse debate among Italian constitutional lawyers exists about the limits of the possible missions of the Italian armed forces. However, these debates do not seem to be of great practical importance since there are no procedures by which this issue could be brought before the Constitutional Court. The significance of the debate also seems to be mitigated by the fact that the Italian Parliament must specifically authorise most operations of the armed forces abroad. This leaves Germany and Spain as those states in which serious constitutional objections have been raised with respect to the permissibility of certain uses of the armed forces. Article 8 (1) of the Spanish Constitution states that "the Armed Forces, comprised of the Army, the Navy, and the Air Force, have as their mission the guarantee of the sovereignty and independence of Spain, and the defence of its territorial integrity and constitutional order".10 b. Mission Defined in a Parliamentary Statute In Belgium, Denmark, Italy, Luxembourg, and Poland the missions of the armed forces are mainly defined by way of parliamentary statutes. In all four states, however, the pertinent statutes do not place substantial limitations on the use of the armed forces: In Belgium a law11 states that in time of peace, the members of the armed forces can either (i) take part in an operation which is listed among the different operational modalities (modes d'engagement opérationnels) that have been deter-

8 9 10

For details see infra, n. 15, at II. 2. b. For further details see at II. 2. b. See sub II. 3 a.-h., in particular 3. a.

11 Law of 20 May 1994 on the "mise en œuvre des forces armées, à la mise en condition, ainsi qu'aux périodes et positions dans lesquelles le militaire peut se trouver" - MOFA, Moniteur belge, 21 June 1994.

Georg Nolte and Heike Krieger

36

mined by royal decree12 or (ii) take part, at home or abroad, in a mission of assistance to a civil population. The different operational modalities listed by this royal decree are: maintenance of public order in Belgium, observation missions {i.e. operations conducted abroad where troops have to control the implementation of agreements, conventions, or agreed cease-fires, with the consent of all the parties concerned), protection missions {i.e. operations conducted abroad where troops have to protect people in order to secure their safety and free movement), passive armed engagement {i.e. operations conducted abroad in which troops have to keep public order or peace, guarantee the respect for agreements and conventions, and prevent conflicts), active armed engagement {i.e. operations conducted abroad in which troops have to control violence or impose a cease-fire, if necessary by use of force). The list of these modalities does not seem to be exhaustive. In any case, their definition is sufficiently wide to cover nearly any kind of military engagement, provided it does not contradict the jus ad bellum. Belgium's ratification of the Amsterdam Treaty, incorporating the so-called "Petersberg Tasks", confirms that Belgian armed forces can be legally engaged in any of the operations covered by those tasks. In 2001, the Danish Parliament passed an Act on the Purpose, Tasks, and Organisation of the armed forces (hereafter referred to as the Defence Act LFO).13 According to Articles 1 and 2 of the Defence Act "the armed forces shall contribute to the promotion of peace and security," and "the armed forces constitute an important mean of security policy and has the purpose of 1) preventing conflicts and war, 2) upholding the sovereignty of Denmark and securing the continued existence and integrity of the state, and 3) promoting the peaceful development of a world with respect for human rights." The more detailed tasks of the armed forces are outlined in Articles 3 to 6 of the Defence Act.14 This legislative definition of the tasks of the armed forces is, however, reduced in its importance by Article 7 of the Defence Act, according to which "the defence forces shall, according to the specified decisions of the Minister of Defence and after negotiations with the other ministers involved, be allowed to undertake other tasks." This article implies that the specified tasks in Articles 3 to 6 do not prevent the defence forces from taking part in other tasks, and generally this means that participation in the tasks described sub. 3 is not excluded by either the Constitution or the Defence Act, but is left to the decision of the Government and Parliament. 12

Decree of July 6 1994, Arrêté royal portant détermination des formes d'engagement opérationnel et des activités préparatoires en vue de la mise en œuvre des forces armées, Moniteur belge, 20 juillet 1994. 13

Act No. 122 of 27 February 2001.

14

See below II. 3. a.-h.

Comparison of European Military Law Systems

37

In Italy, the Law of 14 November 2000, No. 331 on "Rules for the Institution of the Professional Military Service" provides that the armed forces have the task, apart from their priority function of defence, of participating in operations "for the realisation of peace and security in conformity with the rules of international law and according to the decisions of the international organisations to which Italy belongs", of "safeguarding free institutions", and of "carrying out specific tasks in circumstances of public calamity and in other cases of extraordinary necessity and urgency". In addition, the Italian Parliament defines missions ad hoc when authorising specific operations. In Luxembourg, the mission of the armed forces has been recently defined by parliamentary legislation. On 2 August 1997 the Parliament amended the law on the Organisation of the Armed Forces from 23 July 1952 (OMP). The new Article 2 of this Law provides that the armed forces shall "participate in the defence of the territory of the state", "in the defence of living quarters on the state's territory", "protect other public institutions and services and the population in case of public interest or a catastrophe", participate "in the collective or common defence in the framework of international organisations to which the Grand Duchy is a member", "contribute in the same manner to humanitarian missions, evacuation missions, peace keeping missions, and armed crisis prevention missions including peace enforcing missions", and "contribute to the control and monitoring of the implementation of international treaties to which Luxembourg has acceded". In Poland, the tasks of the armed forces are not only laid down in the broadly interpreted Article 26 (1) of the Constitution (see II. 1. and 2 a. above), but also in the Statute on the General Duty to Defend the Republic of Poland of 21 November 1967, the Statute on the Employment and Stationing of Polish Armed Forces Abroad of 17 December 1998 and in the Police Statute of 1990 in its amended version. Article 3 (1) of the Defence Act states that the Polish Armed Forces are to safeguard the sovereignty and independence of the Polish Nation, as well as its security and peace. Article 3 (la) of the Defence Act, which was added in 1997, states that the Polish Armed Forces may also take part in combating the effects of natural disasters and extraordinary threats to the environment, as well as in search and rescue missions. The Statute on the Employment and Stationing of Polish Armed Forces Abroad entered into force on 1 January 1999. This statute distinguishes between the employment and the stationing of the Polish Armed Forces abroad. According to Article 2 (1) of the Statute on the Deployment of the Polish Armed Forces Abroad means their presence abroad in order to take part in: armed conflict or the support of the forces of an allied state or states (Article 2 (1) (a), peace operations (Article 2 (1) (b), and missions against terror attacks or their effects (Article 2 (1) (c). In

38

Georg Nolte and Heike Krieger

addition, Article 2 (2) of the same statute permits the stationing of Polish armed forces abroad for them to take part in: military training or manoeuvres (Article 2 (2) (a)), rescue, search, and humanitarian missions (Article 2 (2) (b)), and representative events (Article 2 (2) (c)). Since Article 117 of the Polish Constitution states that rules concerning the use of the Polish Armed Forces abroad are to be specified in a ratified international treaty or in a statute it appears that, taken together, the Defence Act of 1967 as amended, and the Statute on the Use of the Polish Armed Forces Abroad of 1998 limit, for the time being, the possible uses of the Polish armed forces. Finally the Polish Police Statute of 1990 (in its amended version) prescribes in Article 18 (3) that "armed forces may be used if the use of armed police units appears to be inefficient". Such a mission requires a decision of the President at the request of the Prime Minister. c. Mission Defined by Way of a Governmental

or Administrative

Act

Only in France and the United Kingdom is the mission of the armed forces is defined exclusively by way of governmental acts. These governmental acts do not appear to substantially limit the mission of the armed forces: In France, an ordinance 15 defines the "objective" of defence in very general terms, as "to ensure at all times, under any circumstances, and against any form of aggression, the security and the integrity of the territory as well as the life of the population. Further principles of defence are determined by the authorities as invested by the Constitution". In addition, the mission of the French armed forces is defined by the French Ministry of Defence in a White Paper 16 dating from 1994 as being: 1) to protect the vital interests of France against all forms of aggression, 2) to contribute to the security and defence of Europe and the Mediterranean, with the prospect of a common European defence policy ultimately being implemented, 3) to contribute to actions conducive to peace and the respect of international law, 4) to carry out public service tasks, particularly by strengthening means and organisations normally responsible for the civil defence of the state. These four basic missions are elaborated upon in more detail in the White Paper. In the United Kingdom, the Ministry of Defence has outlined the mission of the armed forces as follows: "The purpose of the Ministry of Defence and the armed forces is to: 1) defend the United Kingdom and Overseas Territories,

15

Article 1 of the Ordinance No. 59-147 from 7 January 1959.

16

Livre blanc sur la défense, La documentation française, March 1994.

Comparison of European Military Law Systems

39

our people and interests, 2) act as a force for good by strengthening international peace and security".17

3. Permissible Operations Sections II. 1. and 2. have demonstrated that the majority of the states under review do not differentiate, on a constitutional level, between different types of missions abroad. This is true for Belgium (all missions which conform to certain political conditions and which do not violate the general rules of public international law are permissible), Denmark (permissible missions are described in a parliamentary statute which includes a general clause according to which "other tasks" are allowed according to specified decisions of the Minister of Defence), France (the only constitutional limitation is that the armed forces may not be used for "conquest" and "against the freedom of any people", a wide range of possible missions is defined in a governmental ordinance and in a White Paper), Italy (the Constitution is interpreted to permit Parliament to define the tasks of the armed forces within the limits of international law), Luxembourg (no substantial limitations on the constitutional level), the Netherlands (constitutional rule is interpreted broadly), Poland (no substantial constitutional limitations, but missions abroad must be based on a statute or a ratified international treaty), and the United Kingdom (only ministerial statement of mission). This leaves Germany and Spain as the only states under review whose constitutions seem to play a significant role in determining whether or not certain missions are permissible. Some of the following points can therefore be answered rather summarily: a. Crisis Management Abroad Crisis management abroad includes all forms of observation, peacekeeping and peace enforcement missions, be they on the basis of a mandate of the U N Security Council, or a regional organisation, or upon an invitation by a foreign government, or a determination by the government itself that the need for a humanitarian intervention exists. The use of the armed forces for such forms of crisis management is permissible on the basis of a governmental decision in Belgium (provided the mission does not violate the general rules of public inter-

17 Ministry of Defence Website: ; see also The Government's Expenditure Plan and Main Estimates, Ministry of Defence, (2001) at pp. 5-6, The Role of the Ministry of Defence and the Capabilities of the Armed Forces.

40

Georg Nolte and Heike Krieger

national law), Denmark (Articles 3 and 6 LFO explicitly mention "crisis management" within and outside NATO as one of the possible missions of the Danish armed forces; Article 6 LFO provides that "Danish defence forces may contribute, with military means, to the prevention of conflict, and to peacekeeping, peace-making, humanitarian and other tasks"), France (provided the mission is not undertaken for reasons of conquest or used against the freedom of another people), Luxembourg18, the Netherlands (if the operation can be considered as being "for the purpose of defence and the protection of the interests of the Kingdom, as well as for the maintenance and promotion of the rule of law", terms which are interpreted rather widely), Poland (Article 2 (1) (b) ZUPSZ explicitly allows "taking part in armed conflict...", and "peace operations"), and the United Kingdom (royal prerogative, mission statement of the Ministry of Defence). The constitutional situation in Germany, Italy and Spain is more complicated. In Germany, all crisis management operations abroad which take place within a collective security arrangement are, in principle, permissible. It is an open question, however, whether unilateral crisis management operations, e.g. on the basis of the invitation of a foreign government, are permissible. So far, the issue has not been brought before the Constitutional Court. In Italy, the participation of the armed forces in operations "for the realisation of peace and security in conformity with the rules of international law and according to the decisions of the international organisations in which Italy takes part" is covered by the Law of 14 November 2000, No. 331 and thereby rendered constitutional. It is controversial whether this law, or the constitution, covers operations which do not have a basis in the UN-Charter. Thus, operations which are merely based on bilateral or multilateral agreements or on a national decision are not considered by all authors to have a "clear and unequivocal basis". It must, however, be kept in mind that the Italian Parliament usually gives a specific authorisation to crisis management operations abroad, and that the question of constitutionality cannot be brought before a court. In Spain, Article 8 (1) of the Spanish Constitution states that "the Armed Forces, comprised of the Army, the Navy, and the Air Force, have as their mission the guarantee of the sovereignty and independence of Spain, and the defence of its territorial integrity and constitutional order". There are important differences of opinion regarding the interpretation of this clause. These differences of opinion, however, mainly relate to the domestic role of the Spanish armed forces. This may at first sight appear surprising since a simple (or strict) reading of Article 8 (1) would seem to suggest that crisis management

18

Art. 2 OMP.

Comparison of European Military Law Systems

41

missions abroad are excluded e contrario, at least as far as they do not relate to the sovereignty and independence of Spain. Constitutional scholars, political actors and public opinion, however, agree today that Article 8 does not exclude at least certain crisis management missions abroad. This interpretation is justified by three considerations: First, a royal ordinance which was approved at the time of the making of the Constitution affirmed that "when Spanish military units collaborate in such missions which aim at the maintenance of peace and international security, their service to such elevated purposes will cause them to become noble instruments of their mother country". 19 This royal ordinance was approved by Parliament and has never been questioned. Secondly, it is said that the preamble of the Spanish Constitution which discusses "collaboration in peaceful relations" leaves clear room for the constitutionality of peacekeeping and peace-making operations and that this has been confirmed by Spain's participation in the Kosovo operation by NATO states. Thirdly, the fact that the present Spanish Constitution does not contain a clause which restricts the use of the armed forces to operations which are lawful under international law (as was the case with the former Spanish Constitution of 1931) is interpreted to mean that the Constitution does not prohibit uses of the armed forces that are in contradiction with international law. Today it seems to be widely agreed that the Spanish armed forces may at least participate in such crisis management missions which take place under the auspices and authority of the United Nations.

b. Humanitarian Aid at Home and Abroad Provision of humanitarian aid is a use of the armed forces which does not involve the use of arms and which therefore takes place with the agreement of the parties concerned. Provision of humanitarian aid at home may raise different constitutional questions than the provision of humanitarian aid abroad since at home the delimitation of the jurisdiction of other state organs and the domestic role of the armed forces are at stake. Still, other than in situations which have formally been declared a state of emergency,20 there exist no specific constitutional rules for the provision of humanitarian aid at home in any of the countries under review and only very few legislative provisions.

" Art. 9 OR. See below e.

20

42

Georg Nolte and Heike Krieger

aa. Humanitarian Aid Missions Abroad Provision of humanitarian aid abroad is considered, in all states under review, to be a lesser form of crisis management abroad. Therefore, the considerations mentioned above (see sub a.) largely also apply here. Thus, to use the armed forces for the provision of humanitarian aid abroad is permissible on the basis of a governmental decisions in Belgium (provided the mission does not violate the general rules of public international law), Denmark (Article 6 LFO explicitly mentions that "Danish defence forces may contribute, with military means, to the prevention of conflict, and to peace-keeping, peace-making, humanitarian and other tasks"; Article 4 of the same Act authorises the armed forces to "attend to tasks of public authority"), France (provided the mission is not undertaken for reasons of conquest or used against the freedom of another people), Germany (unarmed provision of aid is not considered to be a relevant restricted "use" of the armed forces in the sense of Article 87 a (2) of the Constitution), Luxembourg,21 Italy (the Law of 14 November 2000, No. 331 provides that the armed forces have the task of "carrying out specific tasks in circumstances of public calamity and in other cases of extraordinary necessity and urgency" which includes humanitarian aid missions abroad; in addition, the law permits operations "for the realisation of peace and security in conformity with the rules of international law and according to the decisions of the international organisations in which Italy takes part"), the Netherlands (such operations are considered to be "for the purpose of defence and the protection of the interests of the Kingdom, as well as for the maintenance and promotion of the rule of law" in the sense of Article 97 (1) of the Dutch Constitution), Poland (Article 2 (1) (a) and (b) ZUPSZ explicitly allow taking part in "armed conflict or the support of the forces of an allied state or states" and "in ... peace operations", Article 3 (1) (a) POOP, as amended, permits the armed forces to take part in rescue missions), Spain (uncontested interpretation of Article 8 (1) of the Spanish Constitution) and the United Kingdom (royal prerogative, mission statement of the Ministry of Defence).

bb. Humanitarian Aid Missions at Home In Belgium no constitutional and statutory provisions concerning the provision of humanitarian aid at home exist but it is clear that the armed forces may be used for such purposes when the exceptional case arises that the normal civilian

21

Art. 2 OMP.

Comparison of European Military Law Systems

43

means are not sufficient. In Denmark, no constitutional provision exists which would restrict the use of armed forces for domestic purposes and there are no specific rules on states of emergency. The unwritten constitutional principle of legality (rule of law, similar to Gesetzesvorbehalt in German law) has been fulfilled by Articles 4 and 7 LFO which permit the use of the armed forces for humanitarian help at home. It seems that Danish courts would also recognise an unwritten ius necessitatis as a basis for action by the armed forces in such situations. In France, no pertinent constitutional or statutory provisions exist; with the exception of the White Paper of the Defence Ministry which lists the mission of the armed forces as including various forms of "public service tasks" (including the provision of humanitarian aid at home) at the request of the competent authorities "in order to protect the population under all circumstances". In Germany, domestic missions are very specifically regulated in different constitutional provisions which provide for certain procedures and substantial limitations on the possible uses of the armed forces for humanitarian aid missions at home. Operations which do not involve the exercise of governmental authority are, however, not restricted. In Italy, the Law of 14 November 2000, No. 331 provides that the armed forces have the task of "carrying out specific tasks in circumstances of public calamity and in other cases of extraordinary necessity and urgency", which includes humanitarian aid missions at home. In Luxembourg, Article 2 ROMP allows such missions. In the Netherlands, civilian support and assistance tasks (including provision of humanitarian aid at home) are quite common and can be carried out on the basis of the general Police Act and the Act on Disaster and Serious Accidents ( Wet rampen en zware ongevallen). In Poland, no pertinent constitutional provision exists but Article 3 (1) (a) POOP states that the armed forces may take part in combating the effects of natural disasters and extraordinary threats to the environment (which would seem to imply the provision of humanitarian aid in such circumstances). The Polish Constitutional Court has confirmed that the armed forces "also play an important role in securing the state's internal security".22 In Spain, there has been a discussion until the end of the eighties in which it was doubted whether the armed forces could legally undertake such operations, but today it seems to be agreed that they may indeed constitutionally undertake "functions which at no point can require the use of arms". In the United Kingdom, the armed forces may, like any civilian and on the basis of the common law, be used "in aid of the civil power" to restore public order within the United Kingdom which means that

22

Trybunal Konstytucyjny (Polish Constitutional Court), Judgement No. Κ 26/98 of 7 March 2000.

44

Georg Nolte and Heike Krieger

the armed forces have the same obligations and powers as ordinary citizens, including "to come to aid when the civil power requires his assistance to enforce law and order". 23

c. Combined Operations with Civilian Aid Organisations The same rules as under b) apply in all states under review.

d. Cooperation between the Armed Forces and Other Governmental Authorities In Belgium, the use of the armed forces within the state's territory for purposes other than that of defence is of exceptional character. The mayors (Bourgmestres) and the governors of the provinces can request assistance of the armed forces in case of riots or other civil conflicts.24 In addition, the new Statute on Federal Police empowers the commander of the federal police to request support of the armed forces in cases of emergency, if the means of the federal police are not sufficient to ensure public peace and if the armed forces have the technical and personal resources to contribute to the reestablishment of the public order.25 In Denmark, no constitutional provision exists which would restrict the use of armed forces for domestic purposes and there are no specific rules on states of emergency. The unwritten constitutional principle of legality (rule of law, similar to Gesetzesvorbehalt in German law) has been fulfilled by Articles 4 and 7 LFO which permit the use of the armed forces for humanitarian help at home. It seems that Danish courts would also recognise an unwritten ius necessitatis as a basis for action by the armed forces in such situations. In France, no pertinent constitutional or statutory provisions exists except for the White Paper of the Defence Ministry which lists the mission of the armed forces as including various forms of "public service tasks" (inter alia "taking preventive measures for civil protection and rescue operations at the request of competent authorities, in order to protect the population under all circumstances", and "participating in the protection of public authorities and public services when necessary" at the request of the competent authorities "in order to protect the population under all circumstances".

23

The Manual of Military Law Part II ( 1989) chapter 5.

24

Article 175 of the Communal Statute and Article 129 of the Regional Statute. Art. 111.

25

Comparison of European Military Law Systems

45

In Germany, a number of constitutional provisions deal with issues concerning the cooperation between the armed forces and other governmental authorities. In Italy, much pertinent legislation exists for a variety of situations. The general thrust of this legislation is permissive while preserving accountability by regulating competences and reserving certain powers to civilian authorities (such as measures restraining personal freedom). In Luxembourg, Article 2 ROMP describes the mission of the armed forces as "to support the public services and the population in case of urgent public interest and catastrophes". In the Netherlands, civilian support and assistance tasks (including provision of humanitarian aid at home) are quite common and can be carried out on the basis of the general Police Act and the Act on Disaster and Serious Accidents ( Wet rampen en zware ongevallen). In Poland, no pertinent constitutional provision exists, but Article 3 (1) (a) POOP states that the armed forces may take part in combating the effects of natural disasters and extraordinary threats to the environment. The Polish Constitutional Court has confirmed that the armed forces "also play an important role in securing the state's internal security".26 This seems to imply that the Polish armed forces can act in support of governmental authorities at home for the purposes which are stated in Article 3 (1) (a) POOP. In Spain, Article 30 of the Constitution is understood to mean that civil defence is not incumbent on the armed forces, although collaboration with civilian authorities is not generally prohibited. This possible collaboration, however, is not seen as involving the armed capacities of the armed forces, but rather its human, material, and organisational elements. This ambiguity leaves a margin for the Legislature to make specific arrangements as it sees fit, albeit always within the bounds of the Constitution. In the United Kingdom, as has already been mentioned above,27 the armed forces may be used "in aid of the civil power" to restore public order within the United Kingdom which means that the armed forces have the same obligations and powers as ordinary citizens, including "to come to the aid when the civil power requires his assistance to enforce law and order". This provision implies a maiore ad minus that the armed forces may also be requested to provide humanitarian aid at home.

e. States of Emergency at Home In Belgium, no constitutional and statutory provisions concerning internal or external emergencies exist. The armed forces can be used on order of governmental authorities, if extraordinary conditions occur which cannot be coped with by civilian means. The mayors (Bourgmestres) and the governors of 26

Trybunal Konstytucyjny, Judgement No. Κ 26/98 of 7 March 2000.

27

IV. 3. b).

46

Georg Nolte and Heike Krieger

the provinces can request the assistance of the armed forces in case of riots or other civil conflicts.28 In addition, the new Statute on Federal Police empowers the commander of the federal police to request the support of the armed forces in cases of emergency, if the means of the federal police are not sufficient to ensure public peace, and if the armed forces have the technical and personal resources to contribute to the reestablishment of public order.29 In Denmark, no constitutional provision exists on internal or external states of emergency, but Articles 4 LFO ("attend to tasks of public authority") and 6 LFO ("humanitarian help at home") permit certain aspects in this context, and Article 7 LFO allows the armed forces to undertake "other tasks" "according to the specified decisions of the Minister of Defence after negotiations with the other ministers involved"). In France, no pertinent constitutional or statutory provisions exist except for the White Paper of the Defence Ministry which lists the mission of the armed forces as including various forms of "public service tasks" which include, inter alia "taking preventive measures for civil protection and rescue operations at the request of competent authorities, in order to protect the population under all circumstances", and "participating in the protection of public authorities and public services when necessary". In Germany, the armed forces may only be used for those domestic purposes which are expressly provided for in the Constitution (Article 87 a (2) of the Constitution). The use of the armed forces is expressly permitted (subject to certain stringent conditions) in the event of internal emergency and in the event of natural disasters or humanitarian catastrophes at home (Articles 35 (2), 87 a (4) and 91 of the Constitution). In Luxembourg Article 2 ROMP describes the task of the armed forces as "to support the public services and the population in case of urgent public interest and catastrophes". In Italy, the Constitution does not provide for rules concerning domestic states of emergency. It is a matter of debate among constitutional lawyers whether the use of the armed forces in a state of domestic emergency requires an authorisation analogous to that of a State of War (Article 78 of the Constitution) or whether this can be done on the basis of existing general legislation. In the Netherlands, Article 103 of the Constitution provides for official states of emergency and requires statutory legislation as a basis for the special powers in this situation. Under the War Emergency Act 30 and the Coordination or

28

Article 175 of the Communal Statute and Article 129 of the Regional Statute.

29

Art. 111 of the Statute on Federal Police.

30

Oorlogswet voor Nederland.

Comparison of European Military Law Systems

47

Emergency Situations Act 31 the Minister of Defence enjoys wide-ranging powers in such situations. In Poland, no pertinent constitutional provision exists, but Article 3 (1) (a) POOP states that the armed forces may take part in combating the effects of natural disasters and extraordinary threats to the environment. The Polish Constitution also provides in its Article 228 (1) for the procedures to impose martial law, a state of emergency and a state of natural disaster. This provision does not, however, deal with the role and the competences of the military in such cases. So far, a statute which deals more specifically with those extraordinary measures, and the role and competences of the armed forces in this context, has not been enacted. In Spain, Article 8 of the Constitution provides that the armed forces have as their mission not only the defence of its territorial integrity but also its constitutional order. This is interpreted to mean, inter alia, that the armed forces may act in cases of internal and external emergency. In this regard, a distinction has to be made between armed and non-armed tasks. Non-armed missions are permitted without any further preconditions. The majority of scholars argue that armed missions require a prior authorisation by Parliament as they necessarily involve the official declaration of a State of Defence (Article 116 of the Constitution). In the United Kingdom, the Government has the above-mentioned power under common law to call civilians and armed forces alike to come to the aid of the civil power.32 In addition, the Emergency Powers Act 33 enables the government to declare by way of a proclamation that a state of emergency exists, if it appears "that there have occurred, or are about to occur, events of such a nature as to be calculated, by interfering with the supply and distribution of food, water, fuel, or light, or with the means of location, to deprive the community, or any substantial portion of the community, of the essentials of life". Once a proclamation has been issued, the government may enact regulations to provide for the details of the powers it wishes to take to deal with the emergency. Under this statute the Army has been used to take over the tasks of striking fire engine crews and garbage collectors. The Emergency Powers Act of 196434 enables the Defence Council to authorise members of the armed forces to "be temporarily employed on agricultural work or such work as may be approved .as being urgent work of national importance, and thereupon it shall be the duty of every person [subject to service law] to obey any command given by his superior offi-

31

Coordinatiewet uitzonderingstoestanden.

32

See II. 3. b.

33

Emergency Powers Act 1920.

34

Emergency Power Act 1964.

48

Georg Nolte and Heike Krieger

cer in relation to such employment, and every command shall be deemed to be a lawful command .,.". 35

f . Natural Disasters or Humanitarian Catastrophes at Home Remarks sub b) bb) and e) above apply here as well. As a result, the armed forces in every state under review may, in principle, act in such situations, provided that the pertinent provisions concerning the power to request or order the armed forces have been complied with.

g. Evacuation of a State's Nationals The answers to these matters largely derive from the remarks sub a) above. Evacuation operations are largely considered to be a form of crisis management abroad. To use the armed forces for evacuation operations is permissible on the basis of a governmental decision in Belgium (provided the mission does not violate the general rules of public international law), Denmark (Articles 6 and 7 LFO provide for this eventuality: "Article 6 of the Danish Defence Act provides that "Danish defence forces may contribute, with military means, to the prevention of conflict, and to peace-keeping, peace-making, humanitarian and other tasks"), France (the White Paper specifically speaks of "protecting its citizens" as one of the missions of the armed forces), Luxembourg (Article 2 ROMP describes as one of the missions of the armed forces the participation in humanitarian support and evacuations missions in the framework of international organisations to which Luxembourg is a member), the Netherlands (such operations are considered as being "for the purpose of defence and the protection of the interests of the kingdom, as well as for the maintenance and promotion of the rule of law" (Article 97 of the Dutch Constitution), Poland (Article 3 (1) (a) POOP explicitly allows "search and rescue missions", and Article 2 (1) (a) and (b) ZUPSZT permit the armed forces to take part in "missions against terror attacks or their effects" and in "rescue, search and humanitarian missions), and the United Kingdom (royal prerogative, the mission statement of the Ministry of Defence includes the tasks "to respond to emer-

35

Strictly, this Act is unnecessary since the Government could deploy the armed forces wherever it wishes, on the basis of the royal prerogative and, indeed, there is no requirement in the Act for any parliamentary oversight or control. Its value, however, is in making it clear that orders by a superior to carry out agricultural work (or other work of national importance) are lawful orders which the soldier must obey under s. 34 Army Act 1955.

Comparison of European Military Law Systems

49

gencies" and to "protect and further UK interests". The British Ministry of Defence has stated that "the Armed Forces can, at the request of the Foreign and Commonwealth Office or Department for International Development, contribute to humanitarian and disaster relief operations, either on a national basis or as part of a co-ordinated international effort". 36 In addition, according to sect. 56 of the Reserve Forces Act 1996 the Secretary of State 37 may call out members of the reserve forces "if it appears to him that it is necessary or desirable to use armed forces (a) on operations outside the United Kingdom for the protection of life or property or (b) on operations anywhere in the world for the alleviation of distress or the preservation of life or property in time of disaster or apprehended disaster". The situation in Germany and in Italy is more complicated. In Germany, the constitutionality of rescue operations is somewhat doubtful if they are not undertaken jointly with other countries as a collective security operation. In such cases, it depends on whether one sees the unilateral operation as an exercise of the defence function. The issue was debated in regard to the operation by German forces to rescue nationals in Albania in 1997. In Italy, the Law of 14 November 2000, No. 331 provides that the armed forces have the task of "carrying out specific tasks in circumstances of public calamity and in other cases of extraordinary necessity and urgency" which probably includes evacuation missions. Since some such operations do not have a clear basis in the UNCharter (in particular those without the consent of the government concerned), some Italian constitutional lawyers doubt their constitutionality. It must be borne in mind, however, that the question of constitutionality cannot be brought before a court.

h. Use of the Armed Forces in Other Cases According to the remarks sub II. 1 and 2. (above) it has become clear that most of the states under review do not set specific constitutional limitations for the use of their armed forces. This means that the armed forces can in almost all cases also be used for other purposes than those which have so far been dealt with specifically (as long as this keeps within the general task of the armed forces). In Denmark, this is explicitly spelled out in Article 7 LFO which contains an omnibus clause. Belgium and the Netherlands both accept

36

The Government's Expenditure Plan and Main Estimates, Ministry of Defence (2001) at p. 5. 37

On the basis of the royal prerogative.

50

Georg Nolte and Heike Krieger

the general limitation that the armed forces may not be used in a way which violates the general rules of international law. In Luxembourg, the armed forces may only be used for the missions provided in Article 2 ROMP. This list includes practically all conceivable missions of the armed forces. Nevertheless, it restricts the non-defence missions abroad to those missions which are carried out in the framework of international organisations of which Luxembourg is a member. The situation in Germany, Italy and Spain is more complicated. In Germany, there is a strict limitation on the possible uses of the armed forces, at least for domestic purposes, to those situations which have been expressly provided for in the Constitution (Article 87 a (2)). This limitation is, however, justiciable subject to standing requirements. In Italy, the Constitution is in practice not considered to significantly limit the power of Parliament to attribute additional missions to the armed forces. It should not be forgotten, however, that a debate among Italian constitutional lawyers exists about the limits of the possible missions of the Italian armed forces. However, this debate does not seem to be of great practical importance since there are no procedures by which this issue could be brought before the Constitutional Court. In Spain, Article 8 of the Constitution, which defines the tasks of the armed forces, is subject to controversy. It seems, however, that this controversy is centred mainly on the question which forms of domestic use of the armed forces are permissible, and in particular how far the armed forces may become involved in domestic political or constitutional struggles. In the international context, on the other hand, the Spanish Constitution does not seem to be interpreted in a way which would restrict the use of the armed forces. Significantly, the Spanish Constitution is not interpreted to restrict the use of the armed forces abroad to such missions which are in conformity with international law.

4. Limitations on Operations Undertaken Jointly with the Armed Forces of Another State There are no specific constitutional provisions in any of the states under review which restrict any of the above mentioned uses of the armed forces if they are undertaken jointly with the armed forces of another state. To the contrary, provisions which enable and encourage international cooperation would seem to facilitate such cooperation, as seems to be the case in Italy, for example. The only constitutional norms which could conceivably limit the range of possible cooperation with the armed forces from other states are the general rules concerning the transfer of sovereign rights. This is an issue which concerns the

Comparison of European Military Law Systems

51

power of command which will be dealt with more specifically below.38 So far, there does not seem to be much discussion on the broader constitutional implications of an increased European military cooperation. In Spain, however, some commentators have addressed the issue in general terms. The most reasonable position seems to be that as long as the European defence cooperation remains compatible with "the sovereignty and independence of Spain, its territorial integrity, and its constitutional ordering" (Article 8 of the Spanish Constitution), in other words with the constitutional purposes of the armed forces, and is bound to the defence of democratic principles and fundamental rights there should be no conflict. There also do not seem to be specific statutory provisions in any of the states under review which would limit uses of the armed forces in operations which are undertaken jointly with armed forces from other states.

ΠΙ. Constitutional Powers 1. The Position of the Head of State Six of the states under review are monarchies (Belgium, Denmark, Luxembourg, the Netherlands, Spain, and the United Kingdom), two are parliamentary republics (Germany, Italy) and two possess presidential systems (France and Poland). While the monarchs and the presidents of the parliamentary republics only possess symbolic (or formal) control over their respective armed forces, if at all, the Presidents in the presidential systems wield substantial power. a. Monarchies The monarchies can be subdivided into two groups. While Denmark, Spain and the United Kingdom follow the classical English model of a monarch formally exercising all executive power, but being (at least) subject to the countersignature of a responsible minister, the position of the monarch has been somewhat diminished in Belgium, Luxembourg and the Netherlands. In Belgium, Article 167 (1.2) of the Constitution provides that "the King commands the armed forces, and recognises the existence of the state of war as well as the end of hostilities. He notifies the Chambers of those events as soon

38

See V. 2 and 3.

52

Georg Nolte and Heike Krieger

as the interests and the security of the State allow, with all relevant information". According to Article 106 of the Constitution, all acts of the monarch require the countersignature of a responsible minister. In practice, however, decisions relating to the command of the armed forces are taken by the government alone. This practice is probably unconstitutional (if it cannot be justified by opposing customary constitutional law). It can be explained by the behaviour of the Belgian monarch at the beginning and during the Second World War when he alone took the decision to capitulate to Germany against the position taken by the government. In Denmark, Article 3 of the Constitution gives the executive powers to the King (including the domestic command over the armed forces), and Article 19 confirms that the King acts on behalf of the State in international affairs (which includes the decision to use military force abroad). All powers of the King, however, must be exercised through ministers who are responsible to Parliament (Article 12 of the Constitution). This provision ensures that, in practice, the monarch does not play in independent role, and it seems that no monarch has under the Constitution attempted to use his or her powers for separate political purposes. In Luxembourg, Article 37 of the constitution declares that "the Grand Duke commands the armed forces". Nevertheless, any acts of the monarch require the countersignature of the responsible minister. In addition, Article 1 (2) LOMP states that "the participation (in peace-keeping missions) is decided by the government in a joint session...". This procedure is compatible with the command power of the monarch as long as the decision of the government is perceived as a political decision which precedes the formal decision of the monarch (which is issued as a grand-ducal decree). In practice, several decisions of the government to dispatch peace-keeping troops have not been implemented by a grand-ducal decree. In that respect the situation seems to be comparable to the situation in Belgium. In the Netherlands, although the King is the Head of State, the monarch has not possessed the formal command over the armed forces since the enactment of the Constitution of 1983. According to Article 97 (2) of the Constitution, the government (as a collegiate body) has the supreme authority over the armed forces. It is clear that the Dutch monarch can only exercise certain powers which he still retains (some appointments and promotions) with the countersignature of the responsible minister and therefore only with ministerial approval. This means that, in short, the monarch only plays a ceremonial role in matters which concern the armed forces. In Spain, Article 62 h) of the Constitution states that the King is the commander-in-chief of the armed forces. Although this is not entirely free from doubt, most of the authors of academic literature agree that this royal

Comparison of European Military Law Systems

53

prerogative is a formal and purely honorary function which is, of course, subject to ministerial countersignature (Article 56 (3) of the Constitution). One must, however, consider the role which King Juan Carlos played in 1981 when he brought a military coup to collapse by publicly assuming the role of the commander-in-chief. This episode has led to an important discussion in Spain about possible residual powers of the monarch. More than a few serious commentators maintain the view that the Spanish monarch possesses independent powers in an emergency situation which are based on the principle of necessity. In the United Kingdom, control over the armed forces is based on the unwritten royal prerogative. This means in practical terms that the government exercises this prerogative power "as the Crown", since the monarch has no executive powers in person. The monarch has not tried to use his or her formal position for independent decisions for many years. Although the monarchies under review differ in certain details concerning the exact constitutional position of the monarch (including with respect to the military), it is clear that the respective monarchs cannot act independently with respect to the armed forces, neither in the sense that they could purport to actually exercise the power of command independently (except perhaps in marginal cases such as parades, and with the possible exception of Spain), nor in the sense that they would be in a position to exercise any form of veto power, be it for political or for legal reasons.

b. Parliamentary Republics In the two parliamentary republics, Italy and Germany, the respective heads of state (Presidents) possess merely formal or ceremonial powers with respect to the armed forces. In Germany, the Head of State (Federal President) does not even possess a formal power of command. Due to the ostensibly negative experience with the performance of the Reichspräsident under the Weimar Republic, the role of the German Federal President in military matters has been limited to nominating officers and to granting pardons (subject to countersignature). In Italy, the President of the Republic has the power of command ("high command") over the armed forces which is, however, subject to countersignature by the responsible Minister of Defence (Article 87 of the Constitution). In addition, the President can decide to convene the "Supreme Council of Defence" which is composed of the President of the Government, some ministers and some of the highest officers. The President also declares war (as determined by Parliament) and promulgates legislation.

54 c. Presidential

Georg Nolte and Heike Krieger Systems

In the two presidential systems under review, in France and in Poland, the respective Presidents possess important powers with respect to the military. Both Presidents are directly elected by the people. Their direct democratic legitimation gives them an independent position vis-à-vis the government. Only the French President, however, has the power to dismiss the government and to dissolve Parliament. In general, both Presidents cannot exercise their powers independently of, or against the will of the government.) In France, the President of the Republic is the commander-in-chief of the armed forces (Article 15 of the French Constitution), he is the guarantor of national independence and territorial integrity (Article 5), and he makes appointments to the civil and military posts of the State (Article 13). He does not, however, exercise these powers alone but through decisions made by the President of the Republic in (governmental) councils, in particular in the Council of Ministers. The powers of the President can only be fully understood if they are viewed in conjunction with the powers of the government (which is appointed by him but subject to confirmation or rejection by Parliament). In general, the powers of the President are dependent of the countersignature by the Prime Minister or a responsible minister. The government implements the measures decided upon in councils and committees chaired by the President of the Republic. According to Article 20 "the government shall determine and conduct the policy of the Nation. It shall have at its disposal the civil service and the armed forces". According to Article 21, the Prime Minister is responsible for national defence, and he has the power to make regulations, and shall make appointments to civil and military posts. Article 16 of the French Constitution provides that the President "shall take any necessary measures" "after consultation with the Prime Minister, the President of the Parliament and the Constitutional Court" "in the case, that the institutions of the Republic, the independence of the nation or the territorial integrity ... are subject to a serious and present threat and when the functioning of the constitutional organs is suspended". This provision allows the President to act without the consent of any other constitutional organ. It is perceived as the legal basis for the President's prerogative to order the use of the French nuclear weapons. Apart from Article 16 of the Constitution the following procedure applies: If the political majority in Parliament is composed of followers of the President these rules, taken together, constitute a system in which the President predominates and the government merely confirms and implements his decisions relating to national defence - either the decision to put the armed forces into action, or the decision to make military appointments and promotions. If, however, the political majority in Parliament is composed of opponents of the

Comparison of European Military Law Systems

55

President the exercise of his powers to dismiss the government or to dissolve Parliament will not be practicable if it cannot be expected that a friendly majority will be elected. In such a situation, a so-called cohabitation can occur in which either the government nor the President are able to impose their will onto each other and are therefore forced to compromise. In Poland, the President is in a weaker position. His task is mainly to control the government. As in France, the Polish President is the commander-inchief (najwyzszy zwierchnik - commander-in-chief) of the armed forces (Article 134 (1) of the Polish Constitution), he is the guarantor of the continuity of state authority (Article 126 (1)) and he, inter alia, appoints and dismisses, at the request of the Prime Minister, the military Commander-in-Chief of the Armed Forces (Article 134 (4)). He does not exercise his powers alone, but in conjunction with the Council of Ministers (Article 10). All his acts concerning defence policy are subject to countersignature. In contrast to the French President in accordance to Article 16 of the French Constitution, the President of Poland does not have any autonomous power of action or order. Thus, the powers of the President can only be fully understood if they are viewed in conjunction with the powers of the Government. As in France, the Prime Minister is designated by the President and appointed by him but the politically decisive act is the obligatory confirmation or rejection by the Parliament (Article 154 (1)). The government (Council of Ministers) implements the measures decided upon in councils and committees (Article 146 (1) and (2)). Contrary to the situation in France, the competences of the President are not designed to enable him to determine the main conduct of governmental policy but to make him serve as an additional control over governmental policy by the Council of Ministers. In the past several years, there have been substantial differences of opinion between the President and the Government with respect to their respective competences. These disagreements have prevented the enactment of a law on the delimitation of competences between the executive organs in defence matters. The President is also directly involved in the process of taking a decision concerning the employment of the Polish armed forces abroad based on the Statute on the Employment and Stationing of Polish Armed Forces Abroad of 1998 (ZUPSZ). Such decision is to be taken by the President on the request of the Prime Minister in case of a mission against terror attacks or their effects (Article 3 (1) (1) ZUPSZ), or at the request of the Council of Ministers in case of an armed conflict or the necessity to support the forces of an allied state or states as well as peace operations (Article 3 (1) (2) ZUPSZ). The Parliament is to be informed immediately by the President about the decision taken (Article 3 (2) ZUPSZ). Also, the decision is to be published in the Official Gazette (Monitor Polski). The decision must specify all relevant details of the use of Polish armed forces abroad in each particular case. Among other things, the decision

56

Georg Nolte and Heike Krieger

establishes the system of command and supervision of a military unit while abroad (Article 5 (1) ZUPSZ).

2. The Powers of the Government "Government" in the sense of this study means the highest executive organ with the exclusion of the head of state. As stated above39 the states under review can be subdivided into two groups: those which have a government depending solely on the parliament, and those which are dependent on both the head of state and the parliament. It happens that all the six monarchies, like the two parliamentary republics, have developed a purely parliamentary system, while France and Poland with their presidential systems fall into the second group. a. The Six Monarchies and their Parliamentary

Systems

All six monarchies have in common that the governments take the decision to send the armed forces into action, subject only to more or less intense forms of parliamentary control.40 The monarchs, as heads of state, only exercise ceremonial, if any, functions.41 In Belgium, the constitutional provisions according to which the King commands the armed forces and recognises the existence of the Sate of War (Article 167 (1.2)) do not refer to the King in person or as a separate state organ, but to the King in a constitutional sense: a decision by the government as formalised by the King. In practice, it is the Council of Ministers, by consensus and without formal royal approval, which takes the decision to deploy the armed forces. This practice has been reflected in the 1994 Statute on the Use of Armed Forces (Law of 20 May 1994), but it is probably unconstitutional. In Denmark, the government is not mentioned in the Constitution as a separate entity and therefore does not possess any formal powers with regard to the deployment of armed forces. Thus, the Danish Constitution preserves the old principle of the individual responsibility of the different ministers. Since, however, the Prime Minister, has both the power to dismiss individual ministers and the competence to determine the scope of each minister's competences, it is in practice always the government as a whole which decides in cabinet meetings on the use of the armed forces.

39

IV. 5. a). As to the competences of Parliament see below II. 5. d. and 6. 41 As to the competences of the monarchs see above II. 5. a. 40

Comparison of European Military Law Systems

57

In Luxembourg, the situation is similar to the situation in Belgium. In the Netherlands, the power of supreme command over the armed forces is given to the government which includes the Monarch and the ministers. If read in conjunction with Article 45 of the Dutch Constitution this provision means that the Council of Ministers (the cabinet) has the final decision with regard to the use of the armed forces. The only question which is discussed in this context in the Netherlands is whether and, if so, how far this power of the government may be delegated to a smaller circle of ministers within the government. In Spain, Article 97 of the Constitution states that "the Government directs domestic and foreign policy, civil and military administration, and the defence of the State". This rule is the basis for the competence of the government in military matters, in particular with respect to the decision to use the armed forces. This competence is formally exercised by the King whose role, however, is (according to most commentators) purely ceremonial. In the United Kingdom, finally, the government exercises the royal prerogative and acts as the Crown in which the power to employ the armed forces resides. b. The Parliamentary Republics (Germany and Italy) Germany and Italy have a somewhat modified parliamentary system in comparison to the six monarchies. Although the governments in Germany and Italy are subject to the same general forms of parliamentary control, and although they also have the general power to conduct foreign and defence policy, most operations of the armed forces abroad require a specific parliamentary authorisation. In Germany, this requirement of parliamentary authorisation is not spelled out explicitly in the Constitution but was derived from the Constitution by the Federal Constitutional Court in 1994.42 It is noteworthy that the command power is vested in the Minister of Defence in peacetime (Article 65 a of the Constitution) and in the Chancellor in wartime, i.e. during an armed attack on the territory of the Federal Republic (Article 115b of the Constitution) In Italy, Article 1 of Law No. 25/1997 provides that the Council of Ministers (the government) adopts decisions on matters of defence and security. By virtue of this provision the Italian Parliament has asserted its prerogative to give approval to all decisions of the government on defence and security matters prior to their implementation by the competent minister, including the decision to employ the

42

See below sub 3. b. bb.

Georg Nolte and Heike Krieger

58

armed forces. Ministers are individually responsible to Parliament. It is uncontroversial that the constitution prescribes that operations on the basis of international agreements require parliamentary authorisation since international agreements "of a political nature" need such authorisation. It is doubtful, however, whether the constitution requires parliamentary approval for other operations, as prescribed by Law No. 25/1997. In practice, however, the government has accepted that this law is binding. Urgent decisions on operations of the armed forces can be, and have been, taken by the government alone. c. The Presidential Systems in Poland and France The role and the competences of the government in France and Poland have already been described in the section concerning the powers of the head of state.43

3. The Participation of Parliament in the Decision to Deploy the Armed Forces This subject only concerns the powers of the various parliaments with respect to the initial individual decision to put the armed forces into action. All other aspects of the role of parliament with respect to the armed forces are dealt with below.44 It is necessary to distinguish between the powers of parliament to decide on certain situations which are connected with the use of the armed forces in certain circumstances (declaration of war, declaration of internal emergency), on the one hand (aa) and the actual decision to put the armed forces into action, on the other (bb). a. The Prerogative to Declare War and States of Emergency In some of the states under review parliament possesses the prerogative to declare war or a state of emergency, or at least to authorise such declarations by the executive. Those powers, however, neither cover all conceivable cases of the use of the armed forces (in particular not all self-defence and collective security operations) nor are such declarations necessary constitutional preconditions for the actual use of the armed forces.

43

See above II. 5. a.

44

See II. 6.

Comparison of European Military Law Systems

59

In Belgium, the declaration of war is a prerogative of the King (the government). Parliament must only be informed as soon as possible (Article 167 (1.2) of the Constitution). The government also decides on the use of Belgian troops during internal states of emergency (on the basis of the Law of 20 May 1994) and this does not require special parliamentary involvement. In Denmark, the Constitution does not provide for a competence to declare war or internal states of emergency, but it regulates the parliamentary participation in the decision to actually employ the armed forces for certain cases. Article 19 (2) of the Danish Constitution requires that "except for purposes of defence against an armed attack upon the Realm or Danish forces, the King shall not use military force against any state without the consent of the Folketing (Parliament)". This provision does not apply to domestic uses of the armed forces (which are permissible within the limits of the principle of legality). Interestingly, Article 19 (2) is generally interpreted - seemingly against its wording - to mean that the government can immediately repel an armed attack, but must seek the approval of the Parliament for further defensive action. In France, parliamentary authorisation is required for a declaration of war and for the continuation of domestic states of emergency (état de siège, état d'urgence) after 12 days, but such decisions do not as such imply an authorisation to use the armed forces. In Germany, Article 115a of the Constitution provides that Parliament must determine by a two-thirds majority that a "state of defence", i.e. an armed attack on the territory of the Federal Republic, exists. This provision, however, does not concern the permission to use the armed forces but rather to enact and apply domestic emergency rule. In addition, different constitutional provisions concern situations arising from domestic emergencies. In Italy, the President declares war "as determined by Parliament" (Article 87 of the Italian Constitution). It is not clear whether this provision also applies to domestic emergencies. In Luxembourg, Article 37 of the Constitution provides that "the Grand Duke declares war and the end of war after authorisation by the chambers in a vote according to Article 114 (5) of the Constitution" (two-thirds majority with presence of three quarters of the Members of Parliament). This requirement of parliamentary authorisation does not apply to today's missions of the armed forces, which are carried out without a formal declaration of war. Below constitutional level, Article 1 (2) LOMP requires, that the decision of the government on the participation of the Grand Duchy takes place "after consultation of the responsible committees of the representatives' assembly". In the Netherlands, Article 96 (1) of the Constitution requires parliamentary authorisation for a declaration of war and Article 103 provides for domestic states of emergency. Although there have been discussions and court proceed-

60

Georg Nolte and Heike Krieger

ings in this respect, Article 96 has not been interpreted to require parliamentary authorisation for military operations which were undertaken without a formal declaration of war. In Poland, Article 116 of the Constitution states that Parliament declares war and peace by resolution. In addition, the Polish Constitution also provides in its Article 228 (1) for the procedures to impose martial law, a state of emergency and a state of natural disaster. According to Article 231 of the Polish Constitution, the declaration of martial law and the state of emergency is made by the President, but must be submitted to Parliament within 48 hours. Parliament can then annul the President's decision. These provisions do not, however, deal with the role and the competences of the military in such cases. So far, a statute which deals more specifically with those extraordinary measures, and the role and competences of the armed forces in this context, has not been enacted. In Spain, the Parliament must authorise both the declaration of war by the King (Article 63 (3) of the Constitution) and the various different states of emergency (Article 116 of the Constitution) with the exception of a "state of alarm" which the Prime Minister may declare and put into effect immediately, a subsequent authorisation by Parliament being only required to extend this state beyond 14 days. Most Spanish commentators maintain that the domestic armed use of the military, without the previous declaration of a State of Siege, would be unconstitutional. The situation is different for the use of the armed forces abroad: Although some commentators have asserted that the Spanish participation in the Kosovo operation was unconstitutional because it would have required a formal declaration of war and therefore an appropriate parliamentary authorisation, most commentators agree that this was not the case. In the United Kingdom, finally, the declaration of war is part of the royal prerogative (which is exercised by the government). The Emergency Power Act 45 enables "Her Majesty" (the government) to declare by way of a proclamation that a state of emergency exists. b. The Decision on the Deployment

of the Armed Forces

The states under review, with the exception of Denmark, Germany, and, in a certain sense, Italy do not have constitutions which formally require their respective parliament to positively authorise the initial decision by the government to deploy the armed forces. Some states do, however, provide for a duty to

45

Emergency Power Act 1920.

Comparison of European Military Law Systems

61

inform or consult the parliament. The actual intensity of parliamentary involvement in the decision on the deployment of the armed forces is not necessarily linked to the scope of other parliamentary rights. aa. Denmark: A Limited Right of Parliamentary Approval Denmark is the only state under review whose constitution provides for the requirement, under certain circumstances, of a formal parliamentary authorisation for the deployment of the armed forces. Article 19 (2) of the Danish Constitution requires the consent of Parliament for use of the armed force "against any foreign state". This provision does not apply to domestic uses of the armed forces (which is permissible within the limits of the principle of legality). Interestingly, however, Article 19 (2) is generally interpreted - seemingly against its wording - to mean that the government can immediately repel an armed attack, but must seek the approval of Parliament for further defensive action. When the use of the armed forces in collective security operations is concerned, Article 19 (2) is interpreted to mean that only if the government of the targeted state agrees to such an operation is there no use of armed force "against any foreign state". This means in turn that if the government does not agree to such an operation (e.g. a UN operation which is (only) based on Chapter VII of the UN Charter) the Danish Parliament must authorise the operation. In addition to Article 19 (2) of the Danish Constitution, Article 19 (1) requires the prior consent of Parliament for taking on obligations of "major importance" (which may include obligations to use the armed forces even with the agreement of the government concerned, e.g. for collective security operations). So far, however, this requirement has been interpreted to be satisfied by certain international treaties (UN-Charter, NATO-Treaty) as such, and did not concern individual operations which were conducted within the framework of such treaties. bb. Germany and Italy: A Comprehensive Requirement of Parliamentary Approval In Germany, the Constitutional Court has derived a comprehensive requirement of parliamentary approval from the Constitution for all kinds of "armed operations", regardless of their purpose. This requirement does not apply in "situations of immediate danger", but approval must be sought as soon as possible afterwards. Parliament authorises "armed operations" by a simple (majority) vote and not by way of ordinary legislative procedure. Parliament does not, however, possess a right of initiative or the power to recall the troops.

62

Georg Nolte and Heike Krieger

In Italy, Article 80 of the Constitution prescribes that international agreements "of a political nature" need parliamentary approval. It seems to be agreed among constitutional lawyers that this means that every operation which takes place on the basis of international agreements requires parliamentary authorisation. In addition, Article 1 of Law No. 25/1997 provides that the decision by the government to employ the armed forces requires the approval of Parliament prior to its implementation by the competent minister. It is not clear whether the constitution actually requires parliamentary approval for all operations as prescribed by Law No. 25/1997. In practice, however, the government has accepted that this law is binding. Urgent decisions on operations of the armed forces can be, and have been, taken by the government alone. It is understood that the Italian Parliament must be kept informed about all operations by the armed forces which are subject to its approval at all times. cc. States with a Constitutional Duty to Inform

Parliament

In Belgium, Parliament does not participate in the decision on the deployment of the armed forces which remains a prerogative of the executive. Article 167 of the Belgian Constitution, however, obliges the King (the government) to communicate his decision to the Parliament as soon as the interest and the security of the State allow this. In Denmark, Article 19 (2) requires the King (the government) to submit immediately to Parliament any measure taken in pursuance of this provision. This obligation to inform is not restricted to the cases in which parliamentary approval is required ("military force against any foreign state"), but also extends to deployments for the purpose of defence. In addition, Article 19 (3) of the Danish Constitution requires the government to consult with a parliamentary committee prior to undertaking any obligation of major importance. Taken together, these provisions make Denmark, apart from Germany, the state with the strongest rights of parliamentary involvement in the decision to deploy the armed forces. In the Netherlands, after demands to introduce a formal requirement of parliamentary approval for the participation of Dutch armed forces in peace operations had failed, a new Article 100 of the Constitution was adopted according to which the government, "prior to the engagement or making available of the armed forces for the maintenance or promotion of the international rule of law, shall provide Parliament with information concerning the intended action. This includes providing information concerning the engagement or making available of the armed forces for humanitarian assistance in cases of armed conflict". Thus, although the Dutch requirement to inform concerns a much more limited area than the Belgian provision, it is stricter insofar as it requires, in general, prior information. Article 100 (2) of the Dutch Constitu-

Comparison of European Military Law Systems

63

tion provides that the first paragraph shall not apply if peremptory considerations prevent the prior provision of information. In this case, the information shall be provided as soon as possible. In Poland, Article 3 (2) ZUPSZ requires that Parliament be informed immediately once a decision to deploy the armed forces has been made by the President (or in his name by the Minister of Defence), and that this decision be published in the Official Gazette specifying all relevant details of the use of the forces (Article 5 (1) of the Statute). c. States with no Constitutional

Duty to Inform

Parliament

In France, Luxembourg, Spain, and the United Kingdom, the initial specific decision on the deployment of the armed forces can be taken without any formal participation of the Parliament and it is not even required that Parliament is informed about the deployment. However, it is worth mentioning that in such cases parliaments in those states regularly insist on their general right to be informed. The most intense communication probably takes place in the United Kingdom, followed by Spain. In France, the Parliament appears to remain somewhat on the margins although the National Assembly was requested by the Prime Minister (on the basis of Article 49 (1) of the Constitution) to approve the participation in the war against Iraq (1990) and approved the Kosovo operation (1999) on its own initiative. In addition, a recently published parliamentary report (Lamy-report) expresses the opinion that there is insufficient parliamentary control of French missions abroad. In Luxembourg, the Constitution does not provide for any role of Parliament in the decision-making process for deployments of armed forces (except in the case of declaring war). Yet, Article 1 (2) LOMP requires that the decision of the government on the participation of the Grand-Duchy in peace-keeping missions shall be made "after consulting the competent committees of the parliamentary assembly".

4. The Functions of the Minister of Defence Article 65 a of the German Constitution, according to which the Minister of Defence is the commander-in-chief of the armed forces, has no direct parallel in any of the other states under review. Only the Polish Constitution explicitly mentions the office of the Minister of Defence. Article 134 (2) of the Polish Constitution states that the President exercises command over the armed forces through the Minister of Defence. In all other states under review, the general rules of ministerial authority and parliamentary responsibility also apply to the

64

Georg Nolte and Heike Krieger

respective Ministers of Defence. In some countries, the functions of all or some of the different ministers are regulated by parliamentary statute, in others they are simply determined by governmental decision or decree. In Belgium, the Minister of Defence exercises the royal prerogative of the command over the armed forces and determines their day-to-day activities. He is individually responsible before Parliament for this. Since, however, the decision to deploy the armed forces is usually taken by the government as a whole, it is also the government as a whole which is responsible for such decisions. There is no statute in Belgium which outlines the tasks of the Minister of Defence. In Denmark, the Minister of Defence is in general individually responsible before Parliament. His tasks are formally regulated in a statute (LFO) which includes the rule that the Minister of Defence is the highest responsible authority for the armed forces (Article 9 LFO). Since, however, the Prime Minister has the constitutional power to distribute the range of executive powers to the individual ministers, he can transfer the powers of the Defence Minister to other ministers or to himself by royal decree (without changing the text of the Defence Act). This ensures that the Minister of Defence is not only individually responsible to Parliament but also that the government as a whole (which the Constitution does not mention) takes collégial decisions in important defence matters. In France, the Minister of Defence exercises tasks which are regulated in governmental acts46 and by delegation from the Prime Minister. In the French presidential system the role of the Minister of Defence is rather limited. Apart from the fact that the President of the Republic is commander-in-chief of the armed forces (and may exercise this prerogative in certain circumstances) the Constitution explicitly states in Article 21 that the Prime Minister "shall be responsible for national defence". This means in practice that the Prime Minister can through the use of special organs control how defence measures are "implemented" by the Minister of Defence (General Secretariat for National Defence). In Italy, the Minister of Defence is individually responsible before Parliament (Article 94 of the Italian Constitution). His tasks must be formally outlined in a statute (Article 95 (3) of the Constitution and Law Decree of 30 July 1999, No. 300). In Luxembourg, the Constitution does not provide for a special position for the Minister of Defence.

46

Art. 16 of the Ordinance of 7 January 1959; decree No. 62-811 of 18 July 1962, modified.

Comparison of European Military Law Systems

65

In the Netherlands, the Minister of Defence is subject to the general rules of parliamentary control. It should be noted that, according to Article 97 (2) of the Dutch Constitution, it is the government as a whole and not the Minister of Defence, which has "supreme authority" over the armed forces. This corresponds to a practice in the Netherlands according to which important defence matters are dealt with by a special sub-council of the government as a whole (by the Council for European and International Affairs - Raad voor Europese en Internationale Aangelegenheiden, REIA) in which the Minister of Defence does not even seem to play the major role. Yet in practice the Minister of Defence plays an important role as the head of the ministry to which the armed forces belong. In Poland, the President exercises command over the armed forces through the Minister of Defence (Article 134 (2) of the Constitution). The legal situation is similar to that in France, with the exception that in Poland it is the Council of Ministers, and not the Prime Minister, who exercises general control in the field of national defence (Article 146). Thus, as in France, the Polish Minister of Defence is not only responsible before parliament but also subject to a special constitutional supervision by the government as a whole and by the President of the Republic. This includes, inter alia, the prerogative of the President to nominate the Chief of General Staff as well as the commanders of the different forces without any formal involvement of the Minister of Defence. In addition, the competences of the Polish Minister of Defence are regulated by a Statute "on the Office of the Ministry of Defence" from 1996, and by an implementing Regulation of the Council of Ministers. Finally, the Statute on the Employment and Stationing of Polish Armed Forces Abroad (ZUPSZ) prescribes which military operations can actually be ordered by the Minister of Defence. In Spain, a special statute provides that the Minister of Defence exercises certain powers of the government over "military administration, and the defence of the State" (Article 97 of the Constitution). This law transfers certain powers of the Prime Minister to decide which measures should be taken by the Government (Article 98 of the Constitution) to the Minister of Defence. These powers are not comprehensive, however, since the government as a whole continues to exercise certain important functions. In the United Kingdom, no formal constitutional or legislative rules exist with respect to the function of the Minister of Defence. He is responsible to Parliament as one of the members of the government, and he exercises the command over the armed forces as far as the government does not decide otherwise.

66

Georg Nolte and Heike Krieger

5. The Role of the Military Leadership The military leadership has no constitutional status in any of the states under review. It is hierarchically subordinate to the state organ which exercises supreme command over the armed forces. In Denmark, Italy, Poland, and Spain statutory legislation exists which further specifies the role of the military leadership. No statutory legislation which further specifies the role of the military leadership exists in Belgium, France, Germany, Luxembourg, the Netherlands, or the United Kingdom. In Denmark, Article 11 LFO attributes the power of command to the "Chief of Defence" who exercises this power "on the responsibility of the Minister of Defence". Article 12 LFO gives the Chief of Defence (Forsvarschefen) the power to delegate some of this authority to international units or to subordinate officers of the Danish Army. These provisions do not preclude the power of the Minister of Defence to give orders concerning the exercise of these powers which must be followed by the military leadership. In Poland, Article 8 of the Statute "on the Office of the Ministry of Defence" from 1996 determines the responsibilities of the Chief of the General Staff which mainly include planning and general management tasks. In Spain, the pertinent statute provides for the possibility to designate the command for combat operations to the Chief of the General Staff which is "the military authority through whom the Minister of Defence exerts his authority". 47 In the Netherlands, the influential sub-council of the government as a whole (the Council for European and International Affairs - Raad voor Europese en Internationale Aangelegenheiden, REIA) does not have a member of the military leadership as its member but it is possible that a military person can be invited to attend the meeting. The role of the Dutch Chief of Defence Staff is defined in the (published) General Organisational Decree (1992) of the Minister of Defence. In the United Kingdom, it is an established convention that the Chief of the Defence Staff has the right to direct access to the Prime Minister (thus by passing the Minister of Defence).

6. Parliamentary Control Parliamentary control of the military can concern the initial specific decision to send the armed forces into action. As far as specific rules exist, they have been dealt with above.48 This section deals with all other forms of parliamentary control. 47 48

Royal Decree 1883/1996. IV. 5. c).

Comparison of European Military Law Systems a. The Parliament's

Power to Control the Armed

67

Forces

The general legal means of parliamentary control of the military are basically rather similar in all states under review. They are based on the general principle of parliamentary responsibility of the government and on the powers of the parliament to legislate. Some important differences do, however, exist.

aa. Parliamentary

Committees

and

Questioning

In all states under review, Members of Parliament have the right, under the constitution, to put questions to the government, including, of course, questions on military matters. In addition, all parliaments have formed committees which exercise this right and supervise military affairs more closely. These committees, however, have been formed on the basis of the general constitutional and parliamentary rules and not, as in Germany, on the basis of a special constitutional provision which requires the existence of a special parliamentary defence committee with investigatory powers (Article 45 a of the German Constitution). In Denmark, however, the Foreign Policy Committee of Parliament is mentioned in Article 19 (3) of the Constitution. It also performs a certain form of parliamentary control in military matters since the government is obliged under Article 19 (3) to consult with this committee before taking any decision of major importance in the field of foreign relations. It should also be noted that no state under review acknowledges a right of the parliamentary minority to force parliamentary committees to conduct investigations, as is the case in Germany under Article 44 of the German Constitution. In this context it appears that not only the formal rights of parliaments are important but also the culture of how they are exercised in practice. Thus, in the United Kingdom, the government is usually subject to intense parliamentary questioning and control in defence matters, in particular during armed conflicts. This was true, in particular, during the Kosovo conflict.49 The situation is similar in Germany and Italy. In France and Spain, on the other hand, the respective parliaments and their committees typically act in a rather restrained fashion. The Kosovo crisis, however, seems to have produced higher parliamentary activities in these countries as well.

49

Fourth Report of the Foreign Affairs Committee, Session 1999-2000, Kosovo (23 May 2000, HC 28-1); Defence Committee, The Lessons of Kosovo (2000).

68

Georg Nolte and Heike Krieger

bb. Censure In all states under review, the parliaments have the right to censure the government. Censure of the government can take the mild form of the passing of critical resolutions but also the strong form of a vote of no-confidence. In Denmark, Italy, the Netherlands, and Poland, the responsibility of the Government is not merely collective; individual ministers can also be made the subject of a vote of no-confidence. cc. Budget In all states under review, the respective parliaments possess the general power to decide on the budget. Parliaments can thereby exercise control over the structural development of the military. In Germany, a constitutional provision stipulates that the budget must specifically determine the structure and the future development of the armed forces (Article 87 a (1) (2)). It is perhaps also noteworthy that in Spain the government and the military establishment successfully resisted parliamentary control of the military budget until about the middle of the eighties. dd. Power to legislate In all states under review, the parliament possesses the power to legislate. This power, however, can be of a different scope. In most states the parliament has, in principle, the power to legislate all matters it deems fit, including the military. This is true for the parliamentary monarchies (Belgium, Denmark, Luxembourg, the Netherlands, Spain and the United Kingdom) as well as for Germany, Italy and Poland. In France, on the other hand, Articles 34 and 37 of the Constitution provide for an exhaustive catalogue of issues upon which the Parliament may and must legislate {domaine de la ¡oí). The enactment of all other general rules in defence matters is left to the executive. Concerning the armed forces, Article 34 of the French Constitution provides that Parliament "shall determine the rules concerning the obligations imposed for the purposes of national defence upon citizens in respect of their person and their property, the fundamental guarantees granted to civil and military personnel employed by the State, statutes shall also determine the fundamental principles of the general organisation of national defence". It appears that in practice the activities of the French Parliament in the field of military law do not even go as far as provided by the Constitution. The general power of the parliament to legislate is complemented in some states by constitutional duties to legislate. In Belgium, the legislature must,

Comparison of European Military Law Systems

69

according to Article 182 of the Constitution, "determine the method according to which the members of the armed forces are recruited, as well as their promotion, their rights and their duties". Article 183 of the Belgian Constitution provides that the military contingent (i.e. the precise number of the members of the armed forces) is annually determined by Parliament, and that the law which determines the contingent is valid for one year unless it is renewed. Article 185 states that "no foreign troops may serve the state, or be stationed in or travel across the state, except on the basis of a statute". Article 186, finally, states that members of the armed forces may be deprived of their ranks, honours and pensions only on the basis of a statute. In France, Article 34 of the Constitution describes the areas which are "du domaine de la loi" (see preceding paragraph). In Germany, a general constitutional principle (Wesentlichkeitstheorie) requires that Parliament legislate on all "essential matters". This rather vague rule also applies to the military. Its practical importance lies in the area of fundamental rights where it means that the Legislature must carefully delineate the limitations of fundamental rights (of soldiers and others) as they are provided by law. In addition, Article 87 (1) (2) explicitly required that the budget must specifically determine the structure and the future development of the armed forces. In Luxembourg, Article 96 of the Constitution states that "all matters regarding the armed forces must be regulated by statute". This means that the legislator has the right and the duty to legislate as long this does not affect the capability of the Grand Duke to command the armed forces is not affected (Article 37 of the constitution). In the Netherlands, Parliament must pass legislation on the draft (Article 98), conscientious objection (Article 99), the quartering and provision of troops by the general population (Article 102), the legal status of public employees (which includes the rights and duties of soldiers). Almost all basic rights can only be restricted by, or on the basis of, a parliamentary statute. In Poland, Article 117 of the Constitution requires that the rules on the deployment of the Polish Armed Forces abroad as well as the stationing of foreign armed forces in Poland must be specified in a ratified international treaty or in a statute. It is difficult to determine whether there are any limits on the parliamentary power to legislate in those states whose constitutions do not contain explicit limitations of this power as is the case in France. In Germany, the constitutional court has recognised a "core area of executive decision-making" which means that Parliament may not interfere even by way of legislation in such areas.50 It seems that no similar concept has been developed in the other states 50

BVerfGE 67, 100 (Decision of the German Constitutional Court, Published in the Official Reports).

Georg Nolte and Heike Krieger

70

under review. It is at least fairly clear that no such limitations of parliamentary legislation exist in Denmark and the United Kingdom. There do seem to be such limits in Belgium, however, where the Conseil d'Etat has ruled that the competence of the legislature to organise the armed forces generally allows it to state general guidelines for the command power of the executive over the armed forces in regard to equipment and material purchased. This probably means that the command power as such must not be restricted or defined by acts of the legislator. The same would apply for Luxembourg. b. Special Forms of Parliamentary Control over the Military, Ombudspersons Apart from the above-mentioned general forms of parliamentary control, most states do not have any specific forms of parliamentary control over the military. The exceptions concern Belgium, Denmark, Germany, Italy and the Netherlands. In Belgium, after the tragic events in Rwanda, before and during which Parliament had been kept on the sidelines by the government and barely informed, the parliamentary Commission of Enquiry that followed decided that a special working group should be formed within the Senatorial Foreign Affairs Commission each time Belgian troops are engaged abroad. The working group should follow events closely and report to Parliament.51 In Denmark, the Foreign Policy committee of Parliament, which is mentioned in Article 19 (3) of the Constitution,52 can be considered a special form of parliamentary control to the extent that the questions dealt with in the Committee also involve military questions. In Germany, Article 45 a of the Constitution prescribes the establishment of a special parliamentary Defence Committee with special powers of investigation. In Italy, special legislation has been enacted which regulates the right of all Members of Parliament to visit military structures and troop installations within twenty-four hours notice. Most states under review do not have a special military ombudsperson. The exception is Germany where Article 45 b of the Constitution provides for the institution of a parliamentary Ombudsperson who is exclusively concerned with the military ( Wehrbeauftragter des deutschen Bundestages) In most states, however, the general ombudsperson has the power to deal with military matters.

51 G. Verhofstadt, P. Mahoux, Commisson parlementaire sur les événements au Rwanda. Rapport fait au nom de la Commission d'enquête par MM. Mahoux et Verhofstadt, Sénat

belge, session 1997-1998, 6 décembre 1997, pp. 723-731. 52

See above II. 6. a. aa.

Comparison of European Military Law Systems

71

This is true in Belgium. Since the coming into force of the law of 22 March 1995 on Federal Mediators 53 there is a federal ombudsperson who has the status of an independent authority within the public administration. In Denmark, Article 55 of the Constitution provides for a parliamentary ombudsperson "to control the civil and military administration of the state". Today, the Danish Ombudsman acts on the basis of the Ombudsman Act of 1997 and takes an active interest in military matters. In the Netherlands, the General Ombudsperson also takes complaints from the military (usually a very low number). In Poland, the Polish Ombudsman, who is appointed by Parliament, received the additional power to deal with the armed forces in 1991 which led to the establishment of the "Department of the Ombudsman's office for Protection of Soldiers' and Public Officials' Rights". In Spain, Article 54 of the Constitution provides for a general ombudsperson. However, the law executing the constitution which specifies the tasks of the ombudsperson provides that he or she cannot interfere in the control of national defence.54 In practice, the Spanish Ombudsperson supervises not only the purely administrative activities of the armed forces, but also violations of fundamental rights of soldiers. Even regional ombudsperson have handled military issues from time to time in Spain. In Germany, Article 45 b of the Constitution provides for a special parliamentary ombudsperson for the military. France and the United Kingdom provide very little parliamentary control of the military by ombudspersons. In France, the General Ombudsperson (Médiateur de la République) does not have the status of a parliamentary ombudsperson, but exists as an independent public authority. He or she does not have the power to deal with personnel matters within the administration (which also excludes the question of the treatment of soldiers by their superiors). In the United Kingdom, the Parliamentary Ombudsperson does not have the power to deal with complaints of members of the armed forces which relate to matters of the armed forces. c. Court of Auditors and Comparable Institutions In all states under review, except the United Kingdom, the military is subject to the general national accounting office. No such body exists in the United Kingdom. Another form of control of the military only seems to exist in the Netherlands. The office of the Inspector-General of the Armed Forces (Inspecteur53

Moniteur Belge, 7 April 1995.

54

Art. 14 Ley Organico 3/1981.

72

Georg Nolte and Heike Krieger

generaal voor de krijgsmacht - IGK) has existed since 1813. The IGK has the right to tender his advice concerning personnel, organisational affairs, and all other matters concerning the armed forces to the Minister of Defence. He is considered to be the "military ombudsman." In order to ensure his impartiality and independence, he is not part of the core Ministry (the "Ministry in The Hague"). Any (former) member of staff can approach him to request mediation or an inquiry. The IGK has no power to decide issues, but can decide to inform the Minister of Defence about them and submit his views.

IV. The Structure of the Armed Forces 1. The Armed Forces and their Administration With the exception of Germany and Spain, the states under review have no constitutional or statutory rules which would require, or provide for, a special regulation for the military administration. Thus, in Belgium, Denmark, France, Italy, Luxembourg, Netherlands, Poland, and the United Kingdom, it is up to the Minister of Defence to decide by internal regulation which functions, including personnel administration and supply, are to be administered by military or by civilian officials. In Denmark, however, the Act on Defence Personnel regulates which officials within the Ministry of Defence are civilians and which are military. It is a special feature of German constitutional law that it provides for a strict distinction between the armed forces proper, a special military administration which deals with personnel matters and supply, and the general administration as far as it is involved with other military matters (Article 87 b of the Constitution). These distinctions have been introduced not only for purposes of the German federal system (which include reasons of administrative efficiency) but also in order to ensure stricter civilian control over the military. This increased civilian control is brought about by requiring members of the military administration (in the sense of Article 87 b) to be civilians who are not subject to the military command power of the Minister of Defence but only subject to his general power of administrative direction. The situation in Spain differs considerably from the German situation. According to Article 97 of the Spanish Constitution, "the military administration is under the control of the government". In contrast to Article 87b of the German Grundgesetz, this provision presupposes that the military administration is composed or at least can be composed of members of the military. The Spanish provision must be understood in the light of the political situation which existed when the Spanish Constitution was created. At that

Comparison of European Military Law Systems

73

time, the Spanish military played an independent role and the democratic leadership had to fear interference by the military in political affairs. This led to the result that the subjection of the military to democratic accountability was expressed only in a limited fashion in the Constitution. Thus, Article 97 of the Spanish Constitution is not based on functional considerations of administrative efficiency, and it does not affect the ways in which the military administration works. It is merely an affirmation of the primacy of the political superior at least over this part of the military. The military members of the Spanish military administration are subject to military discipline. In Belgium, traditionally a general civilian administration service exists in the Ministry of Defence which is separate from the military structure proper. The personnel of this administration are subject to most of the general rules of civil servants. This structure, however, will be changed beginning in 2002 at which time the general administration service will be integrated in the military structure and will be placed under the authority of the (joint) Chief(s)-of-Staff. In Denmark, although the armed forces are comprised of military and civilian personnel, no organisational distinction exists between a civilian administration and the military proper. The differentiation between military and civilian personnel is determined by the Act on Defence Personnel, but it is not based on principled considerations of political accountability. The most important difference in practical terms is that military personnel are subject to the Military Criminal Code while civilian personnel are not. In France, the whole military administration is organised under the responsibility of the Minister of Defence. Military and civilian personnel are involved in the military administration. No statutory rules exist which would limit the Minister of Defence to assign certain tasks to military or to civilian personnel. In the Netherlands, the Ministry of Defence is authorised to deal with all defence-related administration. In Poland, the General Staff of the Armed Forces is an integral part of the Ministry of Defence, in which there does not seem to exist a civilian component. In the United Kingdom, the administration and supply of the British armed forces is subject to military command structures under the Ministry of Defence.

2. Involvement of the Civilian Administration in the Process of Procurement of Material and Supplies In none of the states under review (except Germany) does the constitution or a parliamentary statute require that a civilian administration be involved in the process of procurement of material and supplies for the armed forces. These are issues of military, administrative, and financial efficiency. The respective Minis-

74

Georg Nolte and Heike Krieger

ter of Defence has the responsibility to decide whether these tasks should best be carried out by military or civilian personnel, by the military proper or by separate civilian administrative structures.

V. Soldiers' Rights and Duties 1. Restrictions on Fundamental Rights of Soldiers In all countries under review, soldiers enjoy, in principle, the same fundamental rights as every citizen. In Denmark, Germany, Italy, the Netherlands, Poland, and Spain this is either explicitly stated in the Constitution, or it can be inferred from constitutional provisions. In Belgium, France, and Luxembourg, the applicability of fundamental rights is laid down in statutory law. In the United Kingdom there is neither a constitutional nor a statutory law clause dealing with soldiers' fundamental rights since there is no general catalogue of fundamental rights. It is therefore necessary to refer to the European Convention on Human Rights (ECHR) which was implemented as British law by the Human Rights Act 1998. British soldiers' fundamental rights are thus based on the ECHR.

a. General Aspects Although the extent of specific restrictions of fundamental rights for soldiers differs in the various systems, common characteristics prevail. In some countries, constitutional provisions deal with specific restrictions of fundamental rights for soldiers. The Constitutions of Denmark (Article 85), Germany (Article 17 a), and Spain (Articles 22, 28, 29, 70) consider it necessary to include a special constitutional basis in order to allow for restrictions of soldiers' rights which go further than general limitations of fundamental rights. According to these provisions, the freedom of assembly can be restricted in Denmark (Article 85), and Germany (Article 17 a). Collective petitions by soldiers are explicitly forbidden by the Constitutions of Germany (Article 17 a) and Spain (Article 29 (2)). In Denmark, Article 85 also refers to the freedom of association. In Spain there is a unique provision concerning the freedom of association. Article 28 of the Spanish Constitution states that the Legislature is free to recognise the fundamental right to form trade unions for members of the armed forces or not. If such recognition were to be given, that legislation would not be required to apply the "essential content" rule, which guarantees that allowing a limitation of a right may not amount to the utter denial of its essence (Article 53 (1)). Further specific restrictions in Denmark, Germany, and Spain concern: the

Comparison of European Military Law Systems

75

freedom of expression (Germany, Article 17 a), personal liberty (Denmark, Article 85), and the right to stand for elections (Spain, Article 70). In addition, the Constitution of Spain includes a prohibition of associations of a paramilitary character (Article 22 (5)). There are two requirements for the limitation of soldiers' rights which apply in all countries under review: prescription by law and proportionality. These requirements are in conformity with the ECHR, which stipulates that any restriction of the rights to respect for private and family life, freedom of thought, conscience, and religion, freedom of expression, and freedom of assembly and association must be prescribed by law and be necessary in a democratic society (Articles 8-11 ECHR). The European Court of Human Rights ruled in 1976, in Engel v. Netherlands, that "the Convention applies in principle to the members of the armed forces." This is based on Articles 1 and 14 ECHR and finds support in the wording of Article 4 (3) (b) and Article 11 (2) ECHR. Still, the Court bore in mind the particular characteristics of military life and its effects on the situation of individual members of the armed forces.55 Thus, the Court emphasised that a system of military discipline by its very nature implies the possibility of placing limitations on certain rights and freedoms of the members of these forces which would be impossible to impose on civilians.56 In all countries under review, except for Denmark and the United Kingdom, the restrictions of fundamental rights must either be based on a parliamentary act or be included in a parliamentary act. In Spain, a special kind of law, a so-called ley orgánico (Organic Law), is required - that is a law which needs a qualified majority in both Houses of Parliament (Article 81 of the Spanish Constitution). In Denmark, the principle of legality requires that restrictions of fundamental rights must either be based on statutory law or on equivalent sources of law. Thus, limitations on fundamental rights can also be based on customary law. One of these customary rules provides that public institutions may regulate their relationship with their users by issuing administrative orders. Since such orders can even acquire the rank of constitutional rules they can limit constitutionally guaranteed fundamental rights. Likewise, the restrictions imposed on a soldier must in general be in conformity with the principle of proportionality. However, since a soldier is subject to a special regulatory framework of subordination vis-à-vis the state, there are restrictions imposed on soldiers that are not imposed on civilians. Therefore,

55

ECHR, Engel v. Netherlands, Judgement of 8 June 1976, Series A No. 22, p. 23 at para. 54. 56

ECHR, Engel v. Netherlands, Judgement of 8 June 1976, Series A No. 22, p. 23 at para. 57.

76

Georg Nolte and Heike Krieger

German doctrine describes the status of a soldier as a "Sonderstatusverhältnis", while in France the term "cantonnement juridique" is used. Limitations must be justified by defence purposes or specific needs of the armed forces. In the Netherlands, the constitutional system does not contain any explicit reference to the principle of proportionality. Consequently, some constitutional lawyers have suggested that the principle of proportionality does not apply to the restriction of soldiers' fundamental rights. Most legal scholars in the Netherlands, however, support the applicability of the principle of proportionality. In any case, the principle of proportionality applies as a principle under the ECHR, to which the Netherlands are a party. In Denmark and Spain, some considerations apply which are, to a certain extent, comparable to the "Lehre vom besonderen Gewaltverhältnis" in Germany. This doctrine was developed in the nineteenth century and was applied to soldiers, prisoners, and pupils until 1972.57 According to this doctrine, in institutions such as the military, prisons, or schools the administration was not required to base its regulations on a statutory act or to take into account the individual's fundamental rights. The Danish constitutional practice of administrative institutional orders is reminiscent of this doctrine. However, the principle of proportionality strictly limits these Danish administrative institutional orders. In addition, if fundamental rights are infringed upon, there will be a strict judicial review by courts. Article 85 of the Danish Constitution therefore means that the freedoms of assembly and association, as well as the personal liberty of soldiers, are subject to further limitations in addition to those applicable to rights that can only be limited by administrative institutional orders. In Spain, restrictions of fundamental rights must fulfil the general requirements. It seems to be the practice of the Constitutional Court, however, to apply these requirements leniently in the military context. In addition, the "Lehre vom besonderen Gewaltverhältnis", which Spain "imported" from Germany, is still applied by ordinary courts. Following a version of the German "Lehre vom besonderen Gewaltverhältnis", doctrine in Italy has previously held that limitations of the soldiers' human rights do not require a statutory act. The administrative regulations that imposed the restrictions on soldiers were therefore not subject to judicial review. Today, a statutory act is necessary in order to restrict any fundamental rights of soldiers, a practice which is in line with general European developments.

57

BVerfGE 33, 1 - Strafvollzug.

Comparison of European Military Law Systems

77

b. Political Neutrality of Soldiers The military often considers political activities and membership in trade unions as detrimental to the needs of discipline in the armed forces. For this reason the political neutrality of soldiers as well as the freedom of association are controversial issues for all military law systems.58 All countries under review agree that members of the armed forces must be politically neutral. However, while the rules on political neutrality within the armed forces are fairly similar, the extent of the obligation to refrain from political activities outside the armed forces varies immensely. One possible indicator of the required extent of political neutrality is the extent to which soldiers' membership in a political party is permissible. Three groupings can be distinguished. France, Poland, and Spain treat the armed forces as "La Grand Muette" in the French tradition, putting extensive restrictions on soldiers. Belgium, Italy, and the United Kingdom take a more lenient yet still restrictive approach, while Denmark, Germany, Luxembourg, and the Netherlands not only tolerate but also support political activities to a certain extent.59 The different approaches towards the political neutrality of soldiers result to a large extent from specific historical experiences. In Spain, the armed forces' interventionism into political affairs continued from the nineteenth century until the present democratic period. Although military neutrality has been officially required and proclaimed since the nineteenth century, it was not realised for a long time. Particularly after the Spanish Civil War (1936-1939), the armed forces backed the dictatorship of Franco. With the transition to democracy in 1978, the survival of the political system was largely dependent on the political neutrality of the soldiers, and the exercise of their political rights was therefore strictly limited. In Poland, the duty of neutrality also serves the protection of democracy. In Germany, the experiences with armed forces under dictatorship led to other conclusions. The concept of the citizen in uniform (Staatsbürger in Uniform) was developed: an idealised description of a soldier who develops his rights and responsibilities as a politically active citizen. The soldier himself should experience the values of democracy and human rights which he must defend. It is for this reason that German law only prescribes a minimum of political neutrality and supports political activities whenever this does not impede military efficiency.

58

See also Sénat Français, Services des Affairs Européenne, Les droits politiques et syndicaux des personnels militaires, May 2002; at: . 59 See, for instance, below V.5.b. on the regulations on special leave in Germany and the Netherlands.

78

Georg Nolte and Heike Krieger

In some countries, the question of political neutrality reflects the process of "civilianisation"60 of the armed forces. Denmark is probably the best example of increased civilianisation of the armed forces. Civilian and military standards are converging. In Denmark, in contrast to Spain, there is a long-standing military tradition of non-interference in politics. Thus, members of the armed forces are not considered to be a potential threat to the democratic order. They are ordinary citizens with the rights of every other citizen. The same holds true for the Netherlands. In the case Rekvényi v. Hungary, the European Court of Human Rights made it clear that different conceptions of political neutrality of soldiers are permissible under the ECHR. The case deals with a provision in the Hungarian Constitution which prohibits certain groups of civil servants from engaging in certain political activities. The Court recognised Hungary's aim of de-politicising the security forces by restricting their freedoms under Articles 10 and 11 ECHR, so that the public should regard them as a guardian of democratic institutions.61 Thus the Court takes into account the particular history of the contracting State and demonstrates sensitivity to the situation of democracies in transition. aa. Highly Restrictive Policies of Political Neutrality In Poland 62 and Spain,63 soldiers are required to refrain from any political activity both on and off duty. This leads to extensive restrictions on the freedom of expression and the right to information in both countries: distribution of leaflets is forbidden in military installations, the freedom of assembly is not granted to soldiers, and soldiers are forbidden to participate in political gatherings. Membership in a political party is completely forbidden. In Poland, a soldier's membership in a political party or association (or any other political organisation) ceases ipso iure at the moment of appointment to the regular military service.64 In a judgement of 2002, the Polish Constitutional Court declared that the bans on membership in a political party and on taking part in any political gatherings were in fact constitutional.

60

See on the process of civilianisation of the Armed Forces: C. Moskos/J. Williams/ P. Segal, The Postmodern Military: Armed Forces after the Cold War (Oxford, 2000). 61

ECHR, Rekvényi v. Hungary, Judgement of 20 May 1999, Reports of Judgements and Decisions 1999-III, p. 423 at pp. 444 et seq. 62

Art. 68 SWZZ.

63

Art. 182 OR.

64

Art. 68 (3) SWZZ.

Comparison of European Military Law Systems

79

The restrictions on freedom of expression which are imposed on soldiers in France are not as extensive as those in Spain and Poland. Political neutrality is required only on duty. However, here too, soldiers are not allowed to be members of a political party.65 If a soldier wants to express a political opinion in public, he must ask for the prior consent of the Ministry of Defence.66 Soldiers may participate in political gatherings as long as they do not wear their uniforms, but they may not make their status as a soldier public knowledge.67 The distribution of leaflets in military installations may be prohibited in the interest of discipline.68 bb. Moderately

Restrictive Policies of Political

Neutrality

In Belgium, soldiers may join a political party only in the capacity of a technical expert. Whenever engaging in political activity, soldiers must abstain from wearing their uniforms and from publicising their military status.69 In Italy, according to Article 98 (3) of the Constitution, the right to become a member of a political party can be restricted on the basis of a statutory act. In practice, however, no such limitations have been imposed. Still, soldiers in active service are not allowed to promote political parties or candidates. As in Belgium, they must not wear their uniform or make their status as soldier public when they are politically active.70 Apart from that, they are allowed to express their opinions in public. Prior authorisation is required only if military secrets are concerned.71 In the United Kingdom, a soldier is entitled to discuss political issues or to distribute political leaflets, whether on or off duty, in the same way as any civilian. Nonetheless, the soldier may not infringe on military law. The following offences are pertinent: disobedience to a lawful command or to standing orders, insubordination,72 and conduct (which could include an expression of opinion) harmful to good order and military discipline.73 British soldiers may take part

65 66 67 68 69 70 71 72 73

Art. 9 (1) SGM. Art. 7 SGM. Art. 10 (1) SGM. Art. 8 SGM. Art. 15 RDF. Art. 6 Law No. 382/1978. Art. 9 (1) Law No. 382/1978. This includes 'insubordinate language to his superior officer,' Sect. 33 Army Act 1955. Sect. 69 Army Act 1955.

80

Georg Nolte and Heike Krieger

in peaceful demonstrations, for example, against a planned military operation. In the United Kingdom, soldiers may be members of a political party, although they may "not take an active part in the affairs of any political organisation or party. [However,] no restriction is placed upon the attendance at political meetings of such personnel whether in uniform or in civilian clothing, provided that service duties are not impeded." 74 cc. Least Restrictive

Policies of Political

Neutrality

Finally, there is the group of states which grant far-reaching political rights to their soldiers: Denmark, Germany, Luxembourg, and the Netherlands. In all of these countries soldiers are entitled to be members of a political party without any restrictions regarding their function as soldiers. Likewise, soldiers enjoy freedom of assembly. However, there are certain rules which prescribe the conditions under which a soldier is entitled to wear his uniform during such assemblies. In Denmark, the extent of political freedom must be inferred from the possibility to restrict political rights in emergency situations.75 The rules on political neutrality within the armed forces are more liberal in Denmark than in most other countries involved in the study. Soldiers are entitled to distribute political publications in military installations if they respect certain procedural prerequisites. Political loyalty is not required of Danish soldiers. They are not obliged to support the democratic political system. As long as their activities do not infringe on the Military Penal Code they are free to express and support any political views. In Germany, Section 15 SG distinguishes between political activities while on duty, in military installations, and off-duty. While on duty, a soldier is not allowed to engage in politics.76 A soldier is free to express his political opinion during conversations with his colleagues while on duty or in the military installation, but he may not work for a particular political party. Political neutrality is not required during the soldier's leisure time, during which political activities are not only allowed but even welcome, due to the concept of the "citizen in uniform." The only restriction in this context is the prohibition on wearing uniforms at public political assemblies.77 The right to information is not subject to

74

Queen's Regulations for the Army (1975), para. J 5.581.

75

Administrative Order of 1987.

76

Sect. 15 (1) SG.

77

Sect. 15 (3) SG.

Comparison of European Military Law Systems

81

special restrictions, either. The concept of the "citizen in uniform" requires that soldiers have unrestricted access to information about all public debates and political discussions. In Luxembourg, the rules on political neutrality within and outside the armed forces are included in Article 11 of the Law of 16 April 1979, which is modelled upon Section 15 of the German Law on the Rights and Duties of Soldiers (SG). In the Netherlands, all political rights are granted subject to two restrictions: that the exercise of political rights interferes neither with the soldier's ability to perform his duties properly nor with the proper functioning of the public service. The exercise of the freedoms of expression, assembly, and association can be restricted to the extent that the proper functioning and performance of duties is not "in all reasonableness guaranteed".78 Thus, service regulations prohibit the distribution of printed matter if such a distribution would obstruct service interests. Concerning the freedom of assembly, even the organisation of (or participation in) demonstrations on military installations is permissible as long as the demonstration has not been forbidden by the competent authorities. Participation in uniform in a demonstration or assembly outside military premises is permissible, if the demonstration exclusively concerns soldiers' working conditions. Participation in demonstrations abroad is prohibited.79 The attitude towards membership in political parties is comparable to the situation in Germany. Membership in certain radical political parties can be prohibited if it impedes the proper functioning of the organisation or the relevant soldier. dd. The Right to Vote and Standfor Elections In all countries under review, soldiers are entitled to vote (in France only since 1972). The extent of the right to stand for election, however, varies considerably due to different rules on incompatibility. Poland, Spain, and the United Kingdom have specific provisions in their constitutions, respectively in their statutory law, stating that soldiers in active service cannot be Members of Parliament. In Poland, Articles 103 and 108 of the Constitution stipulate that soldiers in active service cannot hold a mandate in the Sejm or the Senate. An elected candidate who is a professional soldier will therefore be transferred to inactive service. In Spain, Article 70 (e) of the Constitution contains regulations on incompatibility. Article 70 of the Spanish Constitution lists profes78 79

Art. 12 a M Aw. Arts. 33 et seq. MAw.

82

Georg Nolte and Heike Krieger

sional soldiers among the professions which are not allowed to be Members of the Parliament. However, a soldier may be granted temporary leave for the exercise of his mandate in a local assembly.80 In the United Kingdom, the House of Commons (Disqualification) Act 1975, Section 1 (c), disqualifies a member of the regular armed forces from membership in the House of Commons.81 Therefore, the soldier must apply 'through higher authority to retire voluntarily or to resign or to be granted a free discharge (...) Approval of an application will depend upon the exigencies of the Service. An unsuccessful candidate will have no right to reinstatement [in the army following the election].'82 Another indirect restriction exists in France. Candidates who are not members of a political party do not have a real chance to be elected on the national level. Although the prohibition for soldiers to be a member of a party does not apply for election campaigns, it is impossible for a soldier to be elected on the national level since the list of candidates is drawn up long before the start of the official election campaign. Without the support of a party, a successful candidature is virtually impossible. Other factual restrictions exist on the local level. Soldiers who want to become members of a local council or a council on the level of departments and regions must leave the armed forces temporarily. This implies that they do not receive any pay. Since political mandates on these levels are not sufficiently remunerated, soldiers are in fact prevented from accepting these mandates. Finally, restrictions result from the French Election Code, according to which an officer of the army may not be elected within the district that is or was under his command during the last six months. In Germany, Italy, and the Netherlands, rules on the right to stand for elections are such as to support the political activities of soldiers. Although the presence of members of the executive, such as soldiers, in a parliament can be seen as endangering the principle of the separation of powers, these countries consider participation of soldiers in parliamentary work as desirable and worthy of protection. In these countries, soldiers are entitled to special leave or temporary suspension of their duties as a member of the armed forces if they hold a public mandate.83 In Germany, in contrast to the situation in France, soldiers receive 50% of their normal pay from the armed forces, if political mandates

80

Art. 14 Law No. 17/1999.

81

Art. 21 (1) Statute on the Military Service of Regular Soldiers of 30 June 1970.

82

Queen's Regulations for the Army (1975), para. J5.585.

83

Germany: Sect. 25 SG; Italy: Art. 6 Law No. 382/1978; the Netherlands: Art. 12c (1) and (2) MAw.

Comparison of European Military Law Systems

83

are not sufficiently remunerated.84 On the local level, the soldier can ask for remunerated special leave in order to fulfil his mandate.85 In Italy, unlike Germany, the soldier is entitled to special remunerated leave during the election campaign and to unremunerated leave if he holds a mandate.86 In Italy, military personnel who are temporarily stationed abroad are not entitled to vote by mail. In the Netherlands, soldiers' political activities are supported by the State in a manner comparable to the German approach. Special leave must be granted to soldiers who want to vote and cannot do so without special leave.87 Article 12c (1) and (2) M Aw provides that if a soldier holds a mandate which requires an amount of work which would interfere with his function in the armed forces, he will be suspended from active service unless the interests of the service require otherwise; if no suspension is granted, the soldier will be granted special leave to attend the sessions of the public organ and to participate in related activities unless the interest of the service requires otherwise. If a soldier has been appointed minister or state secretary he is released from the service.88 c. Freedom of Association The issue of trade unions or professional associations for soldiers has produced different models in the countries under review. The question arises as to whether or not soldiers enjoy freedom of association, especially the right to form and participate in trade unions or comparable specific associations for military personnel. Both the ECHR (Article 11 (2)) and the International Covenant on Civil and Political Rights (Article 22 (2)) expressly recognise that the right to free association may lawfully be restricted in the armed forces. In the case Rekvényi v. Hungary, the ECHR emphasised that any lawful restriction of the freedom of association must be prescribed by law but left open whether it must comply with the principle of proportionality.89 Some countries (Belgium,90

84

Sect. 25 (2) SG.

85

Sect. 25 (3) SG.

86

Germany: Sect. 28 (6) SG; Italy: Art. 6 Law No. 382/1978.

87

Art. 85 AMAR.

88

Art. 40 MAw.

89

ECHR, Rekvényi v. Hungary, Judgement of 20 May 1999, Reports of Judgements and Decisions 1999-III, p. 423 at pp. 448 et seq. § 61. 90

Art. 1 (2) Loi du 11 juillet 1978 organisant les relations entre les autorités publiques et les syndicats du personnel militaire de forces terrestre, aérienne et navale et du service médical, Moniteur belge, 18 August 1978.

84

Georg Nolte and Heike Krieger

Denmark, Germany, Luxembourg,91 the Netherlands,92 and to a certain extent Poland) permit soldiers to form trade unions or professional associations in order to safeguard and improve their working and economic conditions, though the soldiers are not permitted to engage in industrial action, such as strikes. In Germany and the Netherlands,93 special leave is granted for partici-pating in trade union activities. In Poland, due to historical experiences, a distinction is made between the general freedom to form a coalition and the right to form trade unions. The distinguishing criterion is the right to strike. According to Article 70 (1) SWZZ, Polish soldiers may not gain membership in a trade union. The Polish Constitutional Court decided in 2000, as a result of a complaint of the Ombudsperson, that it is in accordance with the Constitution and with Poland's international obligations to prohibit membership in trade unions as long as soldiers can exercise their freedom of association in other forms. In its reasoning, the Constitutional Court refers to the practice of other countries, inter alia to the German practice and the role of the Bundeswehrverband,94 The United Kingdom allows servicemen to belong to civilian trade unions which are appropriate to their personal qualifications in order to facilitate their return to civilian professions. In France,95 Italy,96 and Spain,97 it is generally forbidden to join or form trade unions. In Spain, soldiers are also prohibited from joining professional associations, though recent developments indicate that this could change in the near future. In 2001, the Spanish Constitutional Court ruled that soldiers can participate in professional associations that support economic and social benefits of their members as long as these association do not intend to strike or use other measures of protest. It is the view in these countries that activities intrade unions would counteract the discipline of the armed forces and undermine the soldier's loyalty and the fulfilment of duties. According to these systems the interests of soldiers are protected by their commanding officer or by the State in general. The Italian Constitutional Court has noted that the legal framework for the armed forces must at the same time ensure the protection of soldiers'

91

Art. 13 (3), Law of 16 April 1979. Art. 12a-c M Aw. 93 Art. 12c (3) MAw and Art. 85 AMAR. 94 Polish Constitutional Court (Trybunal Konstytucyjny), Judgement No. Κ 26/28 of 7 March 2000. 92

95 96 97

Art. 10 SGM. Art. 8 (1) Law No. 382/1978. Art. 181 OR.

Comparison of European Military Law Systems

85

fundamental rights as well as their collective interests, but asserted that this could be achieved by other means than recognising trade unions.98 In all countries under review, with the exception of the Netherlands, soldiers do not enjoy the right to strike. In the Netherlands, the legal situation is unclear since there is neither an explicit statutory rule nor any applicable jurisprudence. However, courts have granted the right to go on strike to the police. The exercise of this right is subject to several conditions. The strike must be ultima ratio, it must concern working conditions, remuneration, or comparable interests, it must have been announced in due time, and it must be exercised in such a way as to limit the damage caused to the public administration and the interests of the general public to the greatest extent possible. d. Conscientious Objection Our study is limited to the issue of conscientious objection for active servicemen. In this respect it should be kept in mind that conscription has been abolished or suspended in Belgium, France, Italy, the Netherlands, and Spain during the 1990s. In the United Kingdom, compulsory service ceased at the end of 1962, so that only Denmark, Germany, and Poland still retain conscript armies. Two systems prevail in the countries under review: In France, Italy, Poland, and Spain, a right to conscientious objection is acknowledged only before and after military service. This means that conscripts before entering into active service (in those countries in which there are/were still conscripts) and reservists who have completed their active service are entitled to reject service. Soldiers in active service do not enjoy this right. In France, if a professional soldier begins to object to military service in general, he will be released from the armed forces." The soldier may request his release himself. The request may, however, be rejected. In addition, there is a risk of losing pension rights. If a soldier does not want to participate in a specific operation for reasons of conscience, he can ask not to be deployed. His request need not be granted. In Poland, the refusal to serve may entail criminal responsibilities, since the constant refusal to fulfil one's duties constitutes a crime according to Polish military criminal law.100

98

Italian Constitutional Court ( Corte costituzionale),

99

Arts. 80 et seq. SGM.

100

Art. 341 (2) of the Criminal Code.

Ruling No. 449/1999.

Georg Nolte and Heike Krieger

86

In Spain, Article 30 of the Constitution recognises the right to conscientious objection, but Article 1 (3) Law 22/1998 of 6 July 1998 imposes restrictions for active servicemen. The Spanish Constitutional Court has confirmed the validity of this law.101 This rule is presently criticised in Spain. However, there exists a possibility for active servicemen to leave the armed forces. Article 147 of the Law 17/1999 allows soldiers to quit their positions if they pay compensation to the State for their education. In Denmark, Germany, and the United Kingdom, active servicemen enjoy the right to conscientious objection. A right to conscientious objection has long been recognised in Denmark, if it is against one's religious or ethical beliefs to serve in the armed forces. The Danish practice with regard to enrolled military personnel is relatively liberal since it is considered not to serve a reasonable purpose to keep persons inside the military who are actively opposed to military service. In Germany, a soldier does not have the right to conscientious objection concerning participation in a specific war or a specific out-of-area operation; in the United Kingdom, conscientious objection to a particular form of service is permissible. Such an objection, however, can only result in the discharge of the soldier. e. Equal Treatment aa. Gender Today, women are allowed to join the armed forces in all countries under review. They are excluded only from specific deployments. In Denmark, women are not accepted, for instance, as fighter pilots. In the Netherlands, women cannot be members of a submarine crew, nor can they be members of the Korps Mariniers, the Royal Netherlands Marine Corps. The Netherlands have had an interesting case on equal treatment: the Commission for Equal Treatment decided that it is unlawful direct discrimination if the armed forces permits women to wear earrings and jewellery, but forbids men to do so.102 In the United Kingdom, women are also prohibited from undertaking certain duties. Currently, they cannot serve in the infantry and, in practice, would not be deployed where separate female facilities could not be provided, such as on small vessels of the Royal Navy.

101 Spanish Constitutional Court (Tribunal Constitucional), Judgement No. 161/1987 of 27 October 1987. 102

CGB, oordeel 1998-65.

Comparison of European Military Law Systems

87

However, factual equality is not yet realised in some of the countries under review. In Poland, for instance, only 277 women were members of the armed forces as of 1 January 2001. Most of them belonged to the medical service. Military service is not obligatory for women in any of the countries under review.

bb. Sexual Orientation The legal position of homosexuals has also improved considerably in recent years. While open measures of discrimination have been abandoned in all military law systems, only the Netherlands and Spain apply measures to promote factual equality. In the Netherlands, the emancipation and integration of homosexuals has been an official policy aim since the early 1990's.103 The Netherlands provide for an information policy that is in line with requirements by the ECHR in Lustig-Prean and Beckett v. The United Kingdom.m Special contact persons serve as confidants in all parts of the Dutch armed forces. A special counsellor exists at the Inspectorate General and a Foundation on "Homosexuality and the Armed Forces", which is financially and organisationally supported by the Ministry of Defence, has also been established. The Ministry has issued a special leaflet on various aspects of homosexuality in the armed forces. For participation in international missions and units, sexual orientation is, as a general rule, no obstacle. If the homosexual person is seriously confronted with overwhelming problems, the soldier will be transferred to an equivalent position elsewhere. According to the leaflet of the Ministry of Defence, this does not have any consequences for the soldier's career. The soldier can be forced to participate in peace operations against his wishes, but he has the right to be informed about the situation with regard to homosexuality in the host country. In Spain, some measures have been taken to achieve factual equality. In the Law 29/1999 on Measures for the Geographic Mobility of Soldiers, for instance, housing is granted for stable partnerships, even if the soldier's partner is of the same sex.105 The armed forces have been the first public institution in Spain to confer legal rights to stable partnerships of the same sex. 103 Letter of the MoD to Parliament of 28 May 1991, kamerstuk 21 800 X, No. 47 and 4 May 1993, kamerstuk 22 800 X, No. 51. 104 ECHR, Lustig-Prean and Beckett v. The United Kingdom, Judgement of 27 September 1999, No. 31417/96, 32377/96; Smith and Grady v. The United Kingdom, Judgement of 27 September 1999, Reports of Judgements and Decisions 1999 - VI, p. 45, (1999) 29 EHRR 493. 105

Art. 6 Law 29/1999 on Measures for the Geographic Mobility of Soldiers.

Georg Nolte and Heike Krieger

88

Following two cases before the European Court of Human Rights,106 the United Kingdom has changed its policy towards homosexuals and stopped the automatic administrative discharge of homosexual soldiers. The British Army has issued a new paper, Values and Standards of the British Army (2000) which emphasises that "the Army must take a different and more prescriptive approach towards certain types of behaviour and relationships which might, in most other employments, be regarded purely as a matter of individual choice or morality, and of no concern to the wider community. Within the close-knit and mutually supporting military community, where the consequences of a breakdown in trust are potentially so severe, such behaviour has an added dimension." Certain actions are deemed as misconduct if "the actions of the individual (have) adversely impacted or are ... likely to impact on the efficiency or operational effectiveness of the Army." cc. Race Only in the United Kingdom has racial discrimination been discussed as an issue of concern. There are efforts to guarantee an equal opportunities policy.

f . Other Fundamental Rights and their Restrictions The right to petition collectively is explicitly prohibited in Germany,107 France,108 and Spain.109 The freedom of movement is restricted in all countries by the duty to stay at a particular military installation.110 In addition, soldiers in Poland and Italy are required to obtain the consent of the relevant military authorities in order to leave the country and to stay abroad.111 Freedom of religion is granted in all countries. Certain practices in the United Kingdom and in Italy, however, might infringe on the negative freedom of religion. A soldier in the United Kingdom may be forced to go to a religious

106

ECHR, Lustig-Prean and Beckett v. The United Kingdom, (Decision of 27 September 1999), Application number 31417/96, 32377/96; Smith and Grady v. The United Kingdom, Judgement of 27 September 1999, Reports of Judgements and Decisions 1999 - VI, p. 45, (1999) 29 EHRR 493. 107

Art. 17a of the German Constitution.

108

Art. 13 (8) RDGA.

109

Art. 29 (2) Spanish Constitution.

110

France: Arts. 18, 20 RDGA.

111

Art. 51 SWZZ; Art. 12 Law No. 382/1978.

Comparison of European Military Law Systems

89

service of his own denomination or to a joint service on special occasions of national or local importance.112 A comparable rule in Italy orders soldiers to participate in religious celebrations, i.e. in the Holy Mass on occasions of military ceremonies.113 In a comparable case, the Spanish Constitutional Court stated that such an order violates the negative side of religious freedom.114 It is a sign of the convergence of civilian and military values in the Netherlands that the case law on the freedom of religion in the armed forces focuses on the question of whether positive obligations for the government arise: it has been discussed whether there are obligations to create facilities in which soldiers can enjoy their freedom of religion.115 While in Germany Section 36 SG provides that the soldier is entitled to religious services and undisturbed exercise of his religion, in Denmark it is assumed that there is no duty to provide for religious services to soldiers. In the Netherlands, the question of the right to privacy has been particularly prominent. Already in 1971 a service regulation on haircuts permitted soldiers to have long hair. Today, the issue of the permissibility of earrings and piercings has arisen. The liberal Dutch service regulations on dressing and hairstyle do not apply when a soldier is sent abroad. In this case, his hair must be cut short and no ornaments are allowed.116 In a case concerning a soldier in a UN/NATO mission who refused to have his hair cut, the District Court of The Hague upheld the exception to the general rules on hairstyle. It was concluded that it is not generally accepted abroad and among the armed forces with which the Dutch Air Force cooperated that soldiers wear long hair. Since it may affect the image of professionalism and hence seriously affect the power and effectiveness of the armed forces it was permissible to send the soldier back to the Netherlands.117 The Appeal Court (Centrale Raad van Beroep) decided in favour of the soldier, because the order to cut his hair was made ultra vires and it had not been made plausible that the strength or the professional image of the Dutch forces had been affected by the appellant's long hair. According to the Appeal Court, in the past the wearing of long hair did not seem to have influenced the image of the armed forces while they cooperated in international operations.

112

Queen's Regulations for the Army (1975), para. J5.268.

113

Art. 11 Law No. 382/1978.

114

Spanish Constitutional Court (Tribunal Constitucional), Judgement No. 177/1996, FJ 11.

115

CRvB 25 October 1990, (1990) TAR, p. 243.

116

Handelingen TK, Aanhangsel No. 1181 and Handelingen TK 1996-1996, Aanhangsel No. 1594. 117

Rb Den Haag, 6 May 1998, (1998) TAR p. 126.

Georg Nolte and Heike Krieger

90

In France, soldiers are required to ask for permission in order to get married if their spouse does not have French nationality, or if the soldier who intends to marry is a foreigner serving in the French armed forces.118 In 2000, however, the Conseil d'État stated that only national defence interests could justify the refusal of the Ministry of Defence to give permission for such a marriage.119 In Spain, on the other hand, Article 183 of the Law 85/1978, states explicitly that soldiers have the right to marry and form a family without any kind of special authorisation. In Italy, there are limitations on the right to get married during the first four years of the military career. In 2000, the Constitutional Court declared several laws unconstitutional which stated that an applicant had to be childless in order to enter the armed forces.120

2. Legal Obligations of Soldiers When comparing the different military law systems it becomes clear that more or less the same duties are incumbent upon all soldiers. The most significant difference between these duties depends on whether they are framed in terms of disciplinary or criminal law. Basically, two systems can be distinguished among the countries under review: Belgium, France, Italy, Luxembourg, the Netherlands, Germany, Poland, and Spain regulate soldiers' duties independently of the criminal law system, while in Denmark and the United Kingdom, soldiers' duties can only be inferred from the provisions of military criminal law. The different techniques partly depend on the most important difference between continental and common law systems: The former tend to divide military law offences into two classes: crimes that are subject to judicial punishment, and breaches of discipline that are subject only to administrative penalties.121 In these countries, general duties subject to disciplinary law are included in the laws on the legal status of soldiers, are in general broadly framed, and are only subject to administrative action. Countries such as Denmark and the United Kingdom, which treat all military offences as crimes, need to define these offences in the military criminal law. Accordingly, only few positive legal obligations or duties exist in these countries. In the United Kingdom, the army has, however, issued a paper entitled "Values and Standards of the British Army" (February 2000) which codifies certain positive duties.

118

Art. 14SGM.

119

CE 15 December 2000, Nerzig.

120

Italian Constitutional Court (Corte costituzionale),

121

See VII. 1.

Ruling No. 332/2000.

Comparison of European Military Law Systems

91

a. The Use of General Clauses The use of general clauses in disciplinary and criminal military law is sometimes criticised in the academic literature since such use may compromise the principle of nulla poena sine lege certa. It can be difficult to foresee which behaviour infringes a broadly phrased disciplinary provision. Nonetheless, all countries under review, except for the Netherlands, use general clauses in order to define soldiers' duties. The use of general clauses is commonly accepted because it appears necessary to adjust soldier's duties dynamically to progressive development and new necessities.122 However, the Netherlands have adopted a new Act on Military Discipline which does not contain broad general clauses. The Act is comparatively precise in its description of the specific behaviour which constitutes an infraction on military discipline. b. The Specific Duties More or less the same duties are incumbent upon soldiers in all the countries under review. Differences arise in regard to those duties which have their origin in specific historical and social experiences. The following duties find a direct counterpart in most of the countries under review: a duty of loyalty,123 the duty to defend one's home country,124 a duty of obedience, 125 a duty of secrecy and discretion,126 a duty to comply with

122

In Spain, in particular, the legality of the use of general clauses is disputed. Belgium: Art. 9 (1) RDF; Denmark: Arts. 16 et seq. MJL; France: Art. 1 SGM; Germany: Sect. 7 SG; Italy: Art. 16 RDM; Luxembourg: Art. 8 Law of 16 April 1979; Poland: Art. 43 (1) SWZZ; Spain: Art. 13 OR; the United Kingdom: Values and Standards of the British Army (February 2000) - (Infringements do not lead to direct disciplinary responsibilities); there is no comparable provision in the Netherlands. 124 Belgium: Art. 17 RDF; Denmark: Arts. 16 et seq. MJL; France: Art. 1 SGM; Germany: Sect. 7 SG; Italy: Art. 52 Constitution and the soldier's oath in Art. 2 Law No. 382/1978; Luxembourg: Art. 3 (3) Law of 16 April 1979; Poland: Art. 43 (1) SWZZ; Spain: Arts. 20, 27, 186 OR; the United Kingdom: Values and Standards of the British Army (February 2000) - (Infringements do not lead to direct disciplinary responsibilities); there is no comparable provision in the Netherlands. 123

125 Belgium: Art. 9 (1) RDF; Denmark: Arts. 16 et seq. MJL; France: Art. 15 SGM; Germany: Sect. 11 SG; Italy: Art. 12 Regulation on Discipline 1986; Luxembourg: Art. 7 Law of 16 April 1979; the Netherlands: Art. 15 WMT; Poland: Art. 43 (2) SWZZ; Spain: Arts. 27, 32 OR; the United Kingdom: Sect. 34 et seq. Army Act 1955. 126 Belgium: Art. 9 (1) RDF; Denmark: Arts. 31-37 MJL; France: Arts. 6 et seqq. RDGA; Germany: Sect. 14 SG; Italy: Art. 19 RDM; Luxembourg: Art. 10 Law of 16 April 1979; the Netherlands: Art. 12 a (2) MAw; Poland: Art. 43 (1) SWZZ; Spain: Art. 45 OR; the United Kingdom: Sect. 25 Army Act 1955.

92

Georg Nolte and Heike Krieger

discipline, 127 a duty to respect superiors, and a duty not to be absent without leave.128 Most of these duties describe general military virtues, the esprit de corps, and are thus typical for the armed forces as an institution. Some of the duties, however, are characteristic of the historical or social background of the country. In Denmark, for instance, where the civilianisation of the armed forces is at an advanced stage, the duty to treat subordinates equally and without causing unnecessary trouble is explicitly mentioned. Specific influences also become evident when duties refer to the political system. While some countries (Denmark, France, the Netherlands, and the United Kingdom) do not even mention "political" duties, in Germany, soldiers are obliged to support the free and democratic rule of law. In Belgium 129 and Spain, 130 the duty to avoid any activity which contradicts the Constitution is explicitly mentioned. In Spain, this provision is seen in relation to secessionist tendencies. In Belgium, the comparable provision may have a similar function. A soldier in Poland is under the obligation to be patriotic. 131 Although Article II of the N A T O Status of Forces Agreement requires the members of visiting forces to refrain from any political activity in the host state, it seems that only in Germany, Luxembourg, the Netherlands, Poland, and the United Kingdom is there explicit legislation on soldiers' behaviour abroad. In Germany, 132 Luxembourg, 133 and the Netherlands, military law stipulates a duty of non-interference in the domestic affairs of the host country. In the Netherlands, there is a duty not to engage in political activities which do not concern the Kingdom of the Netherlands. 134 In Poland, soldiers are obliged not to infringe

127 Belgium: Art. 13 RDF; Denmark: Art. 15 MJL; France: Art. 1 SGM; Germany: Sect. 17 (1) SG; Italy: Art. 9 RDM; Luxembourg: Art. 39 Law of 16 April 1979; Poland: Art. 43 (1) SWZZ; Spain: Arts. 1, 10 et seq. OR; the United Kingdom: Sect. 69 Army Act 1955. 128 Belgium: Art. 10 RDF; Denmark: Art. 23 MJL; Germany: Sect. 15 et seq. WStG; Luxembourg: Art. 15 Law of 16 April 1979; Italy: Arts. 147-150 C.P.M.P.; Poland: Art. 338 of the Criminal Code; the United Kingdom: Sect. 37-41 Army Act 1955. 129 Art. 9 RDF. 130 Art. 26 OR. 131 Art. 43 (1) SWZZ. 132 Sect. 16 SG. 133 Art. 24 (2) LOMP. 134 Art. 35 WMT; Art. 170 WMSr; Art. 3 Service Regulation on the Application of Criminal and Disciplinary Law to Dutch Soldiers with regard to Art. 3 of the Regulation on the Application of Criminal and Disciplinary Law with regard to Dutch Soldiers Stationed outside the Kingdom.

Comparison of European Military Law Systems

93

the law of the host nation or the applicable international law.135 In the United Kingdom, soldiers are explicitly forbidden to commit an offence contrary to the law of the host country against any member of the civilian population.136

3. The Power of Command and the Duty to Obey a. Different Models for the Duty to Obey In all military systems, the question of the power to command and the duty to obey is of central importance. Differences in the understanding of these terms are particularly important for multinational units. Some significant differences between the countries under review exist. Thus, conflicts between the military law systems might arise. In none of the countries under review is a superior allowed to give an illegal command. This rule must be distinguished from the question of under which circumstances a soldier must obey a command. Three possibilities exist if an order is illegal: a soldier can be obliged to obey the command notwithstanding its illegality, he can be allowed not to obey the command, or he can be required to disobey the command. The most important question is whether an illegal command is binding or non-binding. The legal systems under review take different approaches to this question. One possibility is the presumption that an illegal order is always non-binding. Another possibility is that the binding force of the order depends on the intensity of the wrongfulness, or on the obviousness of the illegality. The question of whether the illegality is obvious can also serve as a test for the question whether an order may not be or must not be obeyed. The following models for regulation are found in the countries under review: In the United Kingdom, the soldier's duty to obey extends only to lawful commands.137 If the soldier commits an illegal act, the justification of superior orders is not accepted. These considerations apply not only to criminal law but also to cases in which the act ordered would be a tort or would infringe the rights of an individual soldier. In Denmark, France, and Italy, soldiers must not obey an order that is obviously illegal.138 In addition, they may disobey all other illegal orders.

135 Art. 7 (2) 1998 Statute Concerning the Rules of the Employment and Stationing of Polish Armed Forces Abroad. 136 Sect. 63 Army Act 1955. 137 Sect. 34 Army Act 1955. 138 Denmark: Art. 9 MSL; France: Art. 15 (2) SGM; Italy: Art. 4 Law No. 382/1978.

94

Georg Nolte and Heike Krieger

In Belgium,139 Germany,140 Luxembourg,141 the Netherlands,142 Poland,143 and Spain,144 soldiers must disobey all orders that constitute a crime. While soldiers in the Netherlands may disobey all orders they believe in good faith to be unlawful, soldiers in Germany, Luxembourg, and Spain are only entitled to disobey certain illegal orders, above all orders infringing human dignity. As a consequence, in Germany for instance, orders that contravene simple administrative law may nonetheless be binding. Thus, in Belgium, Germany, Italy, Luxembourg, Poland, and Spain, there is a general presumption of the legality of an order, while in Denmark, France, the Netherlands, and the United Kingdom, all illegal orders are non-binding. In the latter countries, the soldier takes a risk in refusing to obey an order that he considers to be unlawful, but which is, in fact, lawful. In the other countries the presumption of legality protects the soldier.

b. Limitations of the Duty to Obey aa. Purposes of the Military Service In Germany, Italy, Luxembourg, the Netherlands, Poland, and the United Kingdom, explicit rules exist according to which orders must be given for a military purpose in order to be binding. The law in the Netherlands refers to "an interest of the military service", while the law in the United Kingdom uses the term "good military reason." The following examples illustrate current practice: In the Netherlands, "an interest of the military service" is usually interpreted very broadly. However, an order to a soldier to cooperate in a private company's film production of the series Combat was considered not to serve an interest of the service. Although the armed forces argued that such participation might influence the image of the armed forces positively, a court acquitted a corporal who had refused to carry out such an order.145 The law in the United Kingdom handles issues that would be considered in Germany as an infringement of human rights or as formally illegal as questions

139 140 141 142 143 144 145

Art. 11 (2) RDF. Sect. 11 SG. Art. 7 (2) and (3) Law of 16 April 1979. Arts. 131 et seq. WMSr and Art. 16 WMT. Art. 15 (2) SWZZ. Arts. 34, 84 OR; Art. 21 CPM. Rb. Arnhem 11 May 1998, (1999) MRT, p. 85.

Comparison of European Military Law Systems

95

of whether the order serves a "good military reason". An order to clean the floor with a toothbrush, for example, is considered not to have a military purpose. Likewise, an order does not serve a good military reason if the superior is not competent to issue the command.

bb. Infringement of the Human Dignity of Soldiers In Germany and Luxembourg, statutory law prescribes that orders infringing human dignity are not binding. In Spain, the Constitutional Court has stated that such orders have no binding force. In Poland, the same result is achieved by making orders which infringe human dignity a military crime.146 Since Polish soldiers must disobey orders that contravene military criminal law, such orders are also non-binding. In Italy, soldiers must disobey an order that infringes human dignity if the infringement is penalized under criminal law. So far, the concept of human dignity is not known in the United Kingdom as a legal concept, but its violation may lead to a charge of ill-treatment of men of inferior ranks.147 This offence would be committed, for instance, by shutting up a soldier in a cupboard for an hour. Other cases could be dealt with as not serving a military purpose. cc. Law of the Host Countries In multinational units, the question can arise as to whether infringements of the law of the host country affects the duty to obey. In the Netherlands, certain provisions guarantee that the laws of host states are respected. These provisions enact Article II of the NATO Status of Forces Agreement and aim to minimise potential conflicts. Thus, Article 18 (2) WMT extends the applicability of military disciplinary law to service regulations concerning soldiers abroad on and off duty. According to Article 170 WMSr, it is a criminal offence not to respect the laws of a host state. The six reported cases in Dutch case law since 1967 have taken place in Germany, and concerned traffic offences. c. Exculpation Exculpation is regulated in more or less the same manner in all countries under review. A soldier is only responsible under disciplinary and/or criminal law if he knew or if it should have been obvious to him that he would commit a criminal 146 147

Arts. 350-353 of the Criminal Code. Sect. 65 Army Act 1955.

96

Georg Nolte and Heike Krieger

offence. This corresponds to Article 33 of the Statute of the International Criminal Court, which reads: "1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) the person was under a legal obligation to obey orders of the Government or the superior in question, (b) the person did not know that the order was unlawful, and (c) the order was not manifestly unlawful. 2. For the purposes of this Article orders to commit genocide or crimes against humanity are manifestly unlawful." In the United Kingdom, however, a stricter rule applies, so that the United Kingdom has not incorporated Article 33 of the Rome Statute into its legal order. In the United Kingdom, whether the order is manifestly illegal or not, it can never serve as an excuse for carrying out an illegal order. It may be used as a defence on other grounds e.g. by denying a particular intent. The constitutional importance of denying a soldier the defence of superior orders under English law is that it places the 'ordinary law' applicable to civilians above any military obligations owed by military subordinates to their military superiors. When comparing these rules with some continental systems, in particular the German system, one must take into account that there is no "Offizialmaxime" under British law. The competent authorities have broad discretion when deciding whether an infringement of military law shall be punished. In Germany, on the other hand, a violation of criminal law must be persecuted. In addition, there is a rule in British military law which finds no equivalent either in the general legislation of the United Kingdom or in the other military law systems under review: Section 134 Army Act 1955 entitles the commanding officer to condone a crime or an offence. If the commanding officer uses his powers to condone such an infringement, the soldier cannot be brought before a military court afterwards.

d. The Duty to Obey in Spain The history of Spain is characterised by numerous coups d'Etat conducted by the armed forces as well as by a military dictatorship starting with a military upheaval. Therefore, the duty to obey is considered to be of particular importance in Spain. The armed forces justified the military revolt of 1936 by an exceptional right of disobedience, since the democratic republic was considered to have threatened "Spain, the Mother Country". The term "Spain, the Mother Country" did not refer to the democratic or the constitutional system but to the

Comparison of European Military Law Systems

97

political aims of General Franco. Today, only the support for the constitutional system can justify military disobedience. Therefore, Article 34 OR states that a soldier is not obliged to follow an order, the execution of which would obviously constitute a crime or would violate the Constitution. Accordingly, it is presently discussed in Spain under which conditions an order that infringes upon the Constitution need not to be obeyed. The majority of authors hold that disobedience is justified if there is no doubt about the order being unconstitutional. The Spanish Supreme Court stated that the unconstitutionality of the order must be so clear that "an absolute idiot with minimum intelligence could make the decision."

4. Social Rights of Soldiers and their Families a. Social Rights in General The concept of a general right to social care (Fürsorgepflicht),as it exists in Germany, finds no equivalent in the other military law systems. It is a concept which is closely related to the German law of the civil services (Beamtenrecht), and thus a German particularity. Nonetheless, most of the military law systems under review grant certain social rights to their soldiers, which differ from those rights granted to other civil servants or to civilians: this includes the offering of certain social services and, above all, a general right to free medical care. In Denmark, soldiers enjoy, as a general rule, exactly the same social rights as every other citizen. In Belgium, certain specific social rights accruing to soldiers include: a right to religious counselling, a right to an early retirement, a certain right to priority in obtaining a position within other State services, the right to unemployment benefits when returning to civilian life, and the right to free postal service and to reimbursement of other communication (mainly telephone) when in service abroad. In addition, there are several provisions on indemnities and pensions in case of work-related accidents and sickness. There are comparable rules in France.149 Moreover, there is a right to receive support in legal proceedings if there is no personal fault of the soldier involved.150 A particular problem arises for soldiers abroad. French soldiers are covered by the social protection legislation of the armed forces only "during service." Since it is not clear which situations are covered by "in service" during

148 149 150

Sect. 30 et seq. SG. Arts. 20-24 SGM. Art. 24 SGM.

98

Georg Nolte and Heike Krieger

a mission abroad, the administration suggests that soldiers take out personal insurance, like ordinary tourists.151 In Germany, the regulations on social rights are basically framed in conformity with the general provisions for civil servants. While Section 30 SG grants allowances and support in kind, Section 31 includes a general right to care which is based on the mutual ties of loyalties and allegiance between the soldier and the State. German soldiers are also entitled to religious counselling.152 A specific feature of the concept of the "citizen in uniform" is enshrined in Section 33 SG which, according to the prevailing interpretation, includes the soldier's legal entitlement to political education (staatsbürgerlicher Unterricht) - a right which can be enforced in the courts. The general right to care is extended to the soldier's family in all personnel-related measures. In Italy, soldiers are excepted from the general trend to assimilate public and private labour law, although they basically enjoy the same fundamental social rights as any other citizen. Basic needs, such as free food, free clothing, fairprice housing, and cultural needs, are regulated by specific laws, internal regulations, or specific agreements with civilian facilities. As in most countries under review, rights to chaplain and social services exist in Luxembourg. Special privileges exist for volunteers who have served for at least three years.153 They have an exclusive right to be employed by certain State services, for instance the postal or the customs service, and a right to privileged employment by the municipalities or Luxembourg Rail. In the Netherlands, particular emphasis is placed on the right to receive education. Soldiers are entitled to have facilities to study for improving job security within or outside of the armed forces.154 These rights are only granted to career soldiers. There is also a corresponding duty to pursue further training.155 The soldier can also request such training.156 The armed forces bear the cost for this education, and if the soldier is, for instance, dismissed from the armed forces, he must repay the educational costs. A right to education also exists in Poland.157

151

See E.-J. Duval, Protection sociale des militaires et banalisation des armées, (1999)

Droit et Défense 99/2, p. 56. 152 153 154 155 156 157

Sect. 36 SG. Art. 24 Law of 23 July 1952. Arts. 17b et seq. AMAR. Art. 13 AMAR. Arts. 14 et seq. AMAR. Art. 48 (l)-(3) SWZZ.

Comparison of European Military Law Systems

99

Spanish military law provides for extensive social rights.158 The Spanish armed forces entertain an independent institute for the management of the social security of its members. Spain pays much attention to the work of social services which are created to address specific problems stemming from the conditions of military life, especially those resulting from the forced mobility of members and their families.159 The importance of general social services and social care seems to be particularly high in countries which quarter soldiers and their families. In Spain, for instance, there is a regulation stating that all soldiers will be provided with sufficient means to allow them free time within the quarters, ships, or bases to participate in cultural, recreational, or sporting activities.160 Since Spanish soldiers are quartered, a Housing Institute of the Armed Forces (Instituto de Viviendas de las Fuerzas Armadas) exists.161 In the United Kingdom, the Queens Regulations for the Army (1975) specify so-called Married Quarters Arrangements. These arrangements state that 'it is intended that married quarters shall be used so as to unite the largest possible number of qualified families in a priority decided in accordance with the married quarters "points system." 162 With regard to religious counselling, the neutral position that countries like Germany or France take is not followed in the United Kingdom. The commanding officers "are to encourage religious observance by those under their command and are to set a good example in this respect". 163

b. Free Medical Care A right to free medical care exists in most of the countries under review. In the Netherlands, soldiers do not enjoy this right, but they receive medical care in cases of accidents or illnesses directly linked to their military service. Diverging rules deal with the issue of whether spouses, children, and other members of the soldier's family may enjoy the same right. Families of soldiers are entitled to free medical care under all circumstances in Italy (parents of conscripts) and Poland; in France, family members may be treated but have lower priority than military personnel; in Belgium and in the United Kingdom, families are entitled 158

Arts. 194 et seq. OR and Arts. 155-158, Law No. 17/1999.

159

Law No. 26/1999.

160

Art. 194 OR.

161

Created by Royal Decree 1751/1990.

162

Queen's Regulations for the Army (1975), para. 5.661.

163

Queen's Regulations for the Army (1975), para. J5.263, para. J5.262; see also above on negative freedom of religion.

100

Georg Nolte and Heike Krieger

to medical care if they are accompanying soldiers abroad. In Italy, free treatment can be extended to families of professional soldiers. In Belgium, the military as well as the civilian personnel of the Ministry of Defence enjoy the right to free medical care by the medical service of the armed forces. The right is extended to family members who accompany personnel of the Ministry of Defence abroad.164 This applies to cases in which the family is treated by the medical service of the armed forces or in a foreign hospital to which they have been transferred by the medical service. In contrast to some of the countries (e.g. France), there is no duty to use the military medical service. In cases in which military medical facilities are not used, normal social security regulations apply. Additional costs may be covered by private insurance. The system in Denmark is slightly different since all Danish citizens enjoy free medical service. Thus, all members of the armed forces (with a special exception for draftees) are included in the general national health service. In France, this issue is regulated by Article 22 SGM. Details are contained in a decree of the Ministry of Defence.165 This decree distinguishes between two kinds of beneficiaries: those who have priority - such as the soldiers themselves - and those who will be treated without priority - such as family members of soldiers. Soldiers are obliged to refer to the medical service of the armed forces (SSA - service de santé des armées). Only in cases of force majeur are they allowed to receive treatment from civilian hospitals. In Germany, the right to free medical care is regulated in Section 30 SG and Section 69 (2) of the Federal Law on the Allowances for Civil Servants and Soldiers. The State contributes to the costs incurred by medical treatment of the soldier's family. The soldier is free to choose civilian treatment. However, in this case he has to cover the costs for himself. In Poland, the spouse and children of a soldier are also entitled to free medical care. Under certain circumstances, other relatives of a soldier can also enjoy this right.166 According to Article 18 ZUPSZ, foreign soldiers may receive medical treatment in units of the Polish public health system. However, the sending state is obliged to cover all financial costs of the treatment. In Spain, general aspects of the soldier's health are regulated in Law No. 17/1999 of the Regulations on the Professional Soldier. Article 156 stipula-

164

Art. 48 Loi programme du 19 juillet 2001 pour l'année budgétaire 2001, Moniteur belge, 28 July 2001. 165 Decree No. 78-194 of 24 February 1978 relative aux soins assurés par le service des santés des armées. 166

Art. 61 ( l ) - ( 3 ) SWZZ.

Comparison of European Military Law Systems

101

tes that the soldier enjoys the medical assistance of the Military Health Service in the case of accident or illness occurring in the course of duty. Contrary to what the wording of this provision seems to suggest, free medical care covers any other illness even if it is not directly linked to the service. Moreover, medical treatment of soldiers is covered by a special social security regulation. In the United Kingdom, the Queens Regulations for the Army (1975) state that 'a commanding officer is responsible in conjunction with the unit medical officer or the medical officer in charge of the unit for ensuring that his unit has adequate medical support (...) Adequate medical facilities are to be available, and the relevant details fully publicised for all training and range practice of any kind.' It adds that 'all regular serving personnel are entitled to medical and dental treatment at public expense and if necessary are to be supplied with surgical appliances.' Family-members who accompany the serviceman when he is stationed abroad are entitled to rely on the medical services of the armed forces.

5. Rules Governing Working Time a. Working Time and Compensation for Overtime All countries under review start from the same approach concerning working time: the idea of the permanent availability of the military personnel. However, the extent to which they adhere to this concept varies. Countries such as Denmark and the Netherlands with an advanced stage of civilianisation of the armed forces take an approach comparable to that of the general civil service. Here, the general laws on working time contain special sections for the armed forces. On the other side, the idea of the permanent availability of the soldier is clearly reflected in the rules applicable in France and Spain. In both countries there is no legal rule regulating service hours or compensation for overtime work. In Belgium, soldiers generally work 38 hours per week like any other civil servant. In Denmark, working hours follow those of other civil servants with modifications for the effectiveness of the armed forces. For instance, it is normally required in Denmark to grant employees 11 hours of free time within each 24-hour period. Since military exercises sometimes last for several days, it is not possible to comply with this provision. In these cases compensation is granted. In France, the principle of the permanent availability of the soldier is enshrined in Article 12 SGM. According to this provision a soldier can be requested to be on duty at all times.

102

Georg Nolte and Heike Krieger

In Germany, soldiers must - unlike other civil servants - basically work 46 hours a week (wöchentliche Rahmendienstzeit). Service hours and compensation for overtime work are regulated in an administrative order.167 In Italy, service hours are regulated by a law which provides for a 36 hours limit plus 2 hours of obligatory overtime. Specific rules may be issued for missions abroad.168 In cases of field exercise and operations exceeding 48 hours in duration, the rules on service hours and compensation for overtime do not apply.169 In Luxembourg, a difference exists between regular career soldiers and noncareer soldiers. While career soldiers must work 40 hours per week, non-career soldiers must be available 24 hours a day. In the Netherlands, the Law on Working Time has a special regulation for "defence personnel", including both military and non-military personnel.170 According to this law, the Minister of Defence is competent to suspend the normal rules on service hours for international functions of the defence personnel. The specific rules applicable to defence personnel contained in the decree have been agreed upon between representatives of the trade unions and the ministry. The focus in practice is on the schedule of working hours which a commander has to establish for every soldier at least 4 weeks in advance. In drawing up the schedule, account must be taken of the rules of the mentioned decree. The commander must determine the schedules in consultation with the medezeggenschapcommissie, a consultative co-determination committee.171 The maximum weekly working times (38 hours) and the daily working hours (7:00 - 18:00) do not apply to officers with specific functions and higher ranks. There is a general exception for those soldiers who are employed outside the Netherlands.172 In principle, soldiers at the disposal of international organs have to comply with the working hours arrangements of the relevant international organisation.173

167 Verordnung über den erhöhten Wehrsold für Soldaten mit besonderer zeitlicher Belastung, 2 June 1989, BGBl. I, 1076. 168

Art. 10 Legge 8 August 1990, No. 231, Gazzetta Ufficiale 11 August 1990, No. 187.

169

Art. 3 Legge 29 March 2001, No. 86, Gazzetta Ufficiale 2 February 2001, No. 77.

170

Rules on service hours for soldiers are included in the general law on working hours (.Arbeidstijdenwet); in Chapter 7 AMAR; in Chapter 4 of the Law of Civil Servants in the Defence Sector (Burgerlijk amtenarenreglement defensie) and in an administrative order of 7 July 2001, Staatsblad 2001, 348. 171

See III. 7.

172

Art. 55e AMAR.

173

Staatsblad 2001, 348, pp. 42 and 47.

Comparison of European Military Law Systems

103

In Poland, Article 52 (1) SWZZ states that the length of working time is dependent on the military service tasks, except that the right to rest is guaranteed.174 General rules of labour law are not applicable. In Spain, soldiers work 40 hours per week like all other civil servants. Nonetheless, Article 221 OR provides for the permanent availability of the soldier.175 There are no rules on compensation for overtime work. So far it seems that there have not been any complaints about the lack of such rules. In the United Kingdom, the general Working Time Regulations 1998176 apply to the activities of the armed forces. The Ministry of Defence is responsible for bringing working practices in the armed forces into line with the requirements of the regulations wherever possible. The average period of effective working time lies between 36 to 50 hours in the countries under review. Except for France and Spain, all countries under review grant compensation for overtime or for the relative disadvantage of service conditions compared to those in the civilian sector. However, one might consider the French system of providing 45 days per annum as recreational holiday as a kind of compensation. While in Poland soldiers receive additional days off,177 the United Kingdom offers monetary compensation. In the United Kingdom, this is because leave cannot be "offered as an inducement, or granted as a reward" according to the Queens Regulations.™ Belgium, Germany, Italy, Luxembourg, and the Netherlands provide for a mixed system. Overtime can be compensated either in money or in free time.179 In practice, soldiers in Luxembourg receive financial compensation since the armed forces suffer from a considerable lack of personnel. There are even special regulations for peace and humanitarian operations in the Netherlands: the Regeling voorziening bij vredes- en humanitaire operaties (WHO 1996). In case of a mission abroad, soldiers in France receive 150% of their normal wages. The regulations in the United Kingdom reflect the approach that it is necessary for a professional army to make service conditions attractive, since the very existence of the army depends on the recruitment. Spain, on the other hand, has so far relied on a conscript army which did not have to consider the

174

Detailed rules are included in an Ordinance of the Minister of Defence of 9 June 1992.

175

See further Art. 154 Law No. 17/1999.

176

See Council Directive 93/104/EC.

177

Art. 53 SWZZ.

178

Queen's Regulations for the Army (1975), para. J5.008.

179

Germany: Verordnung über den erhöhten Wehrsold für Soldaten mit besonderer zeitlicher Belastung, 2 June 1989, BGBl. I, 1076; Netherlands: Arts. 60c and 60d AMAR.

104

Georg Nolte and Heike Krieger

attractiveness of the armed forces. In Germany, the idea of attractive service conditions is closely linked to the concept of integrating the armed forces into society. Soldiers should not be subject to a system that differs considerably from the one for other public service employees. b. Recreational Holidays and Special Leave Only minor differences arise between the countries under review in regard to recreational holidays. All soldiers are entitled to periodic leave, with soldiers in France and Denmark enjoying the largest amount at up to 45 days,180 and 6 weeks per annum, respectively. In France, however, specific rules exist. After one month of service, the soldier is entitled to 4 days recreational holiday. In Belgium, Germany, Poland,181 and the United Kingdom,182 soldiers are basically entitled to 30 days per annum. This depends on rank and age. In Spain, soldiers are entitled to one month recreational holiday. In Italy, recreational holidays range from 30/32 days (within the first 3 to 15 years) up to 37/45 days (after 15 to 25 years). In the Netherlands, there is a minimum of 23 or 24 days depending on rank with additional days depending on age. Denmark, France, Germany, the Netherlands,183 Poland,184 and the United Kingdom 185 also grant post-mission tour leave (embarkation leave), while Spain does not provide for this form of compensation. Regulations on special leave differ. France,186 Italy, Spain,187 and the United Kingdom grant special or emergency leave (compassionate leave) only for personal or family necessity, while Belgium,188 Denmark, Germany, and the Netherlands 189 accept a variety of reasons. Such special leave is granted mainly for exercising political rights, for educational purposes or for the benefit of the community. In Germany, this demonstrates again the extent to which the Leit-

180

Arts. 14 et seqq. RDGA.

181

Art. 53 SWZZ.

182

Armed Forces' Pay Review Body, Twenty-Ninth Report 2000, Cm 456, p. 10.

183

Arts. 83 et seq. AMAR.

184

Chapter 9 of the Regulation on Military Service of Regular Soldiers of 19 December 1996.

185

Armed Forces' Pay Review Body, Twenty-Ninth Report 2000, Cm 456, p. 10.

186

Arts. 14 et seqq. RDGA.

187

Art. 218 OR; Art. 154 Law No. 17/1999.

188

Instruction sur le congés et permission 1999 A 12-1.

189

Arts. 85-87 AMAR.

Comparison of European Military Law Systems

105

motiv of the "citizen in uniform" is reflected in the military law system. In all countries under review, holidays or special leave is granted only if it does not conflict with service needs.

6. Legal Remedies, in Particular Rights to File a Complaint One must distinguish between complaint mechanisms which remain mainly within the chain of command, and those which may eventually reach a civilian court. In all countries under review, complaints may, in specific cases and under certain conditions, be brought before a civilian court. In Denmark and the UK, however, this possibility is comparatively limited. a. Rights to File a Complaint aa. Belgium In Belgium several forms of complaint exist: 1. First, there exists a complaint within the military hierarchy.190 This complaint against a decision which concerns the individual soldier must be addressed to the superior who has taken the decision or to his or her immediate superior.191 2. In addition, soldiers are entitled to ask for the annulment of an administrative decision. The application must be brought before the Conseil d'Etat which is the only administrative court in Belgium. The administrative act is annulled only if it can be shown that there are legal shortcomings, for instance, a lack of explicit motives or procedural abnormalities. 3. Moreover, the soldier can go to a civil court in order to apply for an injunction or to demand claim restitution. For instance, an action can be brought against the responsible Minister of Defence, who represents the State in all cases concerning national defence. Such an action can be filed only if a civil or political right of the applicant has been infringed. 4. Finally, there is the possibility to use the mediation procedure before the Federal Mediator.192 The Federal Mediator is an independent administrative authority within the Federal Administration. The Federal Mediator can be addressed by any interested person on any question which relates to the Federal

190 191 192

Royal Decree of 30 December 1959. Arts. 30 and 31 (h) of the Royal Decree of 30 December 1959. Law of 22 March 1995 on the Federal Mediators, Moniteur belge, 7 April 1995.

106

Georg Nolte and Heike Krieger

Administration, including the Ministry of Defence and the armed forces. A foreign soldier serving under a Belgian superior would be entitled to address the mediator. bb. Denmark In Denmark, complaints can, in principle, be brought before the courts as Article 63 of the Constitution guarantees the right to take any administrative question to court. Since administrative courts usually refrain from reviewing questions of administrative discretion closely, military complaints are rarely successful; only a few cases actually reach the courts. cc. France In France, there exists a general right to complain to the general inspectors in all matters which concern the personal situation of an individual soldier, the service conditions, or life in the military community.193 In addition, the Conseil d'État has since 1995 asserted its jurisdiction to decide over certain administrative measures. Administrative measures which infringe on soldiers' rights can be brought before administrative courts. Before 1995, these measures were considered as internal affairs of the armed forces which were not subject to judicial review.194 On 1 September 2001, a new procedure for complaints concerning the personal situation of the soldier was introduced.195 The procedure is applicable to all complaints against any action of the administration which deals with the personal situation of a service-member. This includes any action relating to recruitment, the exercise of disciplinary power, or measures which are based on the "Code relatif aux pensiones militaire d'invalidité". Thus, the new rules are applicable to legal disputes concerning promotion, evaluation, or transferrai to another post. Before a soldier can go to court, he or she must address a commission which will examine the complaint. The commission is composed of officers and gives an advisory opinion to the Ministry of Defence. An action which is brought directly before an administrative court would not be admis-

193

Art. 13 (1) Decree of 28 July 1975 introduced by Decree No. 85-914 of 21 August 1985. 194 See X. Latour, L'évolution de la jurisprudence du Conseil d'État sur les mesures d'ordre intérieur en matière de défense: les arrêts Notre et Hardouin, (1995) Droit et défense 9512, p. 31. 195

Decree No. 2001-407 of 7 May 2001 and Law No. 2000-597 of 30 June 2000.

Comparison of European Military Law Systems

107

sible. Finally, Article 13 (8) RDGA prohibits any form of collective petition, while Article 12 RDGA allows the soldier to make proposals to his superior concerning the improvement of service conditions and issues of his personal situation. dd. Germany In Germany, several options for legal remedies exist. There is a right to complain according to Section 34 SG and the Law on Complaints of Soldiers ( Wehrbeschwerdeordnung - WBO), a right to an informal complaint, a right to parliamentary petition, and a right of petition to the Ombudsperson. The most important right is the right to complain according to Section 34 SG. It enables the soldier to go to court with any question concerning the military order, so that no aspect, including internal service questions, is excluded from the possibility of judicial review. According to Section 1 WBO, the soldier is entitled to complain if he thinks he has been treated unjustly by a superior (Organbeschwerde), or if he has been injured by the behaviour of a fellow soldier who also violated service duties (Kameradenbeschwerde). Three different types of complaint can be distinguished: complaint concerning the relationship between superior and subordinate, complaint in disciplinary affairs,196 and complaint in administrative issues. The procedure and the determination of the competent court depend on the substance of the complaint. If the complaint is directed against an act based on the relation between superior and subordinate and concerns military order and obedience (truppendienstliche Beschwerde), it is not required that the soldier's subjective rights have been violated: "bad treatment" is sufficient to justify a complaint. The procedure in such cases encompasses, in principle: complaint to the superior (Beschwerde), a further complaint to a superior of higher rank (weitere Beschwerde), and finally an application for a decision by the Administrative Military Court (Antrag auf gerichtliche Entscheidung des Truppendienstgerichts).197 The complaint in administrative matters (Beschwerde in Verwaltungsangelegenheiten) is concerned with the relationship between the soldier in his capacity as an employee and the armed forces as his employer (Dienstherreneigenschaft). The soldier's rights must have been violated by measures or decisions of the Ministry of Defence or of an Inspector of the Troops (Truppeninspekteur). In such cases, the complaint serves as a preliminary administrative procedure. First, the complaint goes to the competent superior. If the complaint is not settled, the

196 197

See below VII.l. Sect. 5 et seq., 16, 17 WBO.

108

Georg Nolte and Heike Krieger

soldier can bring his case before the Special Chamber for Military Law of the Federal Administrative Court. 198 ee. Italy In Italy, several legal remedies are granted. First, there exists the possibility to complain to a superior officer or the Ministry of Defence according to Article 39 R D M in questions related to service, discipline, or private issues. In addition, there is the possibility of a petition to Parliament. In contrast to the situation in France, Germany, and Spain, the Italian Constitutional Court has declared the prohibition of collective complaints and petitions which contain political criticism unconstitutional. However, the Court has not yet rendered a decision on the constitutionality of promoting or signing a subscription for a collective complaint or protest in matters concerning military service or discipline.199 Furthermore, soldiers can demand judicial review by administrative courts of administrative acts related to status. The courts can annul administrative acts concerning the status of the soldier, such as the transfer to another unit. Finally, the soldier can go to a civil court to defend his subjective rights. f f . Luxembourg In Luxembourg, Article 57 (1) of the Law of 16 April 1979 provides for an individual right of complaint of the soldier. All soldiers have the right to file a complaint against all actions of their superiors or their fellow soldiers if they believe their rights have been infringed upon, or if they consider the treatment to have been unjustified. The provision is framed in a manner comparable to Section 34 of the German Law on the Rights and Duties of Soldiers (SG). gg. Netherlands In the Netherlands, one must distinguish between complaints within the chain of command and those brought before a civilian administrative court. First, there is a right to complain against orders or treatment by a superior if the soldier thinks he has been unjustly treated, or if a soldier disapproves of an order.

198 199

Sect. 21-23 WBO. Art. 184 II C.P.M.P.

Comparison of European Military Law Systems

109

This complaints procedure remains within the chain of command, since it concerns non-justiciable matters of military order. It is a specific form of a general complaints procedure against an administrative organ concerning non-justiciable matters.200 The rules of general administrative law therefore apply with certain modification in military law. Secondly, there is a general right to petition and a right to address the Ombudsperson. Finally, there is the possibility of seeking judicial protection from courts against administrative decisions. An application must be addressed to the administrative chambers of the District Courts. Military law cases are brought before the District Court of the Hague. Further appeal goes to the Centrale Raad van Beroep. This remedy is available if the soldier's legal status is concerned. The application must be addressed against a written decision constituting a legal act under public law (publiek rechtelijke rechtshandling).m An application to an administrative court is permissible in these cases only if a complaint has first been rejected by the competent administrative organ.202 This procedure is concerned only with the legality and not the effectiveness of the disputed decision. This constitutes the difference to the complaints procedure described above. hh. Poland In Poland, a soldier can complain about any administrative decision. In these cases, the Polish Administrative Appeals Procedure203 and the Statute of the Supreme Administrative Court are applicable.204 Both Acts provide for complaints in military affairs. According to Article 107 of the 1970 Statute on the Military Service of Career Soldiers, a soldier may appeal against a decision of military authorities to a higher instance and, ultimately, to the administrative court. For some cases, the right has been restricted by Article 107 (1) (a) of the 1970 Statute and by Article 19 of the Statute of the Supreme Administrative Court, which state that the Court is not competent to hear cases concerning the relationship between superior and subordinate in military units. The Polish Constitutional Court interpreted these provisions and made the following distinction: There are cases within the sphere of public administration and cases concerning subjective rights of the individual. The latter cases cause legal

200

Chapter 9 Awb.

201

Art. 1 (3) Awb.

202

Art. 7 (1) Awb.

203

Law of 14 June 1960.

™ Law of 11 May 1995.

110

Georg Nolte and Heike Krieger

effects outside public administration. The Court concluded that only in cases concerning appointment to and dismissal from the career military service is an appeal to the administrative court permissible.205 In addition, there is a right to complain within the chain of command,206 as well as the right to petition outside the chain of command.207 ii. Spain

In Spain, soldiers enjoy numerous possibilities for formal and informal complaints against the behaviour of or against actions of superiors within the military hierarchy. These include a right to petition according to Article 199 OR, a right to complain according to Articles 200, 201 OR and Article 159 Law 17/1999, a right to complain about social conditions within military installations according to Article 161 Law 17/1999, and a right to make suggestions according to Article 203 OR. In addition, Article 200 OR grants Spanish soldiers access to judicial review by a civilian court of all actions which affect them personally and which they consider illegal. jj.

United Kingdom

In the United Kingdom, a soldier has a right of complaint according to Section 180 Army Act 1955 "if he thinks himself wronged in any matter relating to his service." The soldier is required to complain to his commanding officer, but the complaint may also be considered by the Defence Council. The extent of the right to complain can be inferred from the Manual of Military Law I. The complaint must concern treatment by a superior in a service matter. Further, the soldier must explain what kind of remedy he seeks, as no corrective measures will be taken unless the complaint against unfair treatment requests a specific remedy. Only if the soldier seeks judicial review of the decision of the Defence Council may he appeal to civilian courts. If the complaint involves sexual discrimination, racial discrimination, or equal pay, he may appeal to civilian employment tribunals.208 The applicant must show that the rules of "natural

205

Art. 107 (1) a of the 1970 Statute on the Military Service of Career Soldiers. General Rules of Conduct for the Armed Forces of the Republic of Poland (Regulamin Ogólny Sil Zbrojnych Rzeczpospolitej Polskiej); Decision of the Ministry of Defence No. 62/MON of 5 July 1994. 206

207 208

Art. 63 of the Polish Constitution. Sect. 21, 23 et seq. Armed Forces Act 1996.

Comparison of European Military Law Systems

111

justice" have not been complied with, or that the statutory powers have been exceeded.209 Finally, an officer is entitled to address the Queen.210 b. Complaints to the Ombudsperson While a special Ombudsperson for the armed forces exists only in Germany (Wehrbeauftragter des Deutschen Bundestages), there is a general Ombudsperson whose competence includes review of the armed forces in some of the other countries (Belgium, Denmark, the Netherlands, Poland, and Spain). In France,211 Luxembourg, Italy, and the United Kingdom,212 there is no Ombudsperson competent to deal with the armed forces. c. General Right to Petition In all countries under review, a right to petition is usually granted. However, unlike in Germany where the right to petition is enshrined in the Constitution,213 in most countries these rights are included in mere statutory acts. France,214 Germany,215 Spain,216 and to some extent Italy217 prohibit the collective exercise of the right to petition. The Italian Constitutional Court declared the prohibition of collective complaints and petitions in political affairs unconstitutional, but has not yet ruled on the permissibility of collective complaints in matters of military discipline.218 d. Protection of the Right to File a Complaint The significance of the right of complaint in a given legal system can be measured by the existence of guarantees to support its unhindered exercise. Thus, in Germany, where the right of complaint is linked to the concept of the "citizen

209

For an example, see R v. Army Board, ex parte Anderson [1991] 3 All ER 375.

210

Sect. 180 (8) Army Act 1955.

211

Art. 8 Statute No. 73-6 of 3 January 1973.

212

Parliamentary Commissioner Act 1967, Schedule 3 (10).

213

Art. 17 GG.

214

Art. 13 (8) RDGA.

215

Art. 17a GG, Sect. 1 (4) WBO.

216

Art. 29 (2) of the Spanish Constitution and Art. 199 OR.

217

Art. 184 (2) C.RM.P.

218

Italian Constitutional Court (Corte costituzionale), Ruling No. 126/1985.

112

Georg Nolte and Heike Krieger

in uniform", no disciplinary measures are permissible in reaction to an unjustified complaint since the "citizen in uniform" should be able to raise a complaint free from intimidation. The law protects the right of complaint by making it a criminal act if a superior exerts pressure on a subordinate not to raise a complaint.219 Section 2 WBO states that a soldier must not suffer disadvantages or be reprimanded because he or she does not raise a complaint in the correct procedure or in due time, or because the complaint is unjustified. In Spain, military disciplinary law makes it a disciplinary offence if a superior transmits complaints or petitions of his subordinates in a faulty manner.220 On the other hand, it is a disciplinary offence if a soldier evinces disrespect in his complaint, or uses the wrong procedure.221 In Denmark, false complaints may infringe on Article 15 MSL, which deals with military discipline. Article 15 MSL is also violated if the complaint does not meet the formal requirements. However, in recent years soldiers have not been charged for such formal infringements if the complaint was well-founded. In Italy, if a soldier does not follow the chain of command when filing a complaint, he may be subject to disciplinary sanctions. e. Complaint about Fellow

Soldiers

In the reports of the German Ombudsperson for the Armed Forces, it is repeatedly stated that the German rights of complaint are more extensive than those of soldiers from other European countries. This is partly correct in regard to the complaint against the behaviour of fellow soldiers which is explicitly regulated in Section 1 (1) WBO. Explicit regulations on complaints regarding the behaviour of fellow soldiers are also contained in the military law systems of Luxembourg222 and Spain.223 Moreover, the military law systems of Denmark and Poland provide for the possibility of raising a complaint against a fellow soldier, although these complaints are not regulated in detail. In Denmark, Article 15 MSL is interpreted in such a manner as to include the duties of the superior to protect his subordinates from harassment and other ill-treatment by his fellow soldiers. In Poland, the behaviour of fellow soldiers is considered to be a possible object of the various complaints procedures. In Belgium, Italy,

219

Sect. 35 WStGB.

220

Art. 7 (15) RDFA.

221

Art. 7 (14) RDFA.

222

Art. 57 (1) of the Law of 16 April 1979.

223

See, inter alia, Arts. 199-205 OR.

Comparison of European Military Law Systems

113

and the United Kingdom, complaints against the behaviour of a fellow soldier are not permissible. In Belgium, complaints can be raised only against the action of a superior who is directly in charge of the soldier,224 and problems between fellow soldiers are solved on a confidential basis between the superior and the soldiers concerned. In the United Kingdom, the interpretation of the provisions concerning the right to complain, as enshrined in the Manual of Military Law, demonstrates that only a complaint against a superior is permissible in service matters. This implies that a complaint against the behaviour of a fellow soldier is not possible. The Queen's Regulations for the Army (1975), however, indicate that initiation rites might lead to disciplinary measures.225 Moreover, there is a court decision stating that the Ministry of Defence is responsible for any action or omission of fellow soldiers, if a soldier is harmed because of these actions or omissions.226 f . Comparison The statement that the rights of complaint which German soldiers enjoy are more extensive than those of other European soldiers is over simplified. In Denmark, the Netherlands, Poland, and Spain, there exist both a right to complain to the Ombudsperson and a right to petition. The military law systems of Belgium and Italy provide for several different ways to complain about the behaviour of superiors with legal or semi-legal procedures. In Belgium, this includes a general mediation procedure. All other countries provide for some possibilities to complain. In comparison, the German rights to complain seem to be more extensive firstly because they include a complaint against the behaviour of fellow soldiers in a formal procedure which is not known to all military law systems under review. Furthermore, practically all complaints can be brought before a civilian administrative court in Germany. In contrast to this, the Danish law, for instance, explicitly states that decisions about disciplinary measures may not be brought before a court for judicial review.227 Moreover, the comparison with the British law demonstrates that the understanding of what is a permissible reason for a complaint might vary in the practice of the different military law systems. Although rules on complaints and complaints procedures may be phrased in a

224

Royal Decree of 30 December 1959.

225

Queen's Regulations for the Army (1975), para. J5.201 A.

226

Barret vs. Ministry of Defence, in [1995] 3 All ER 87.

227

Arts. 37 (3) and 43 (2) MRPL.

114

Georg Nolte and Heike Krieger

comparable manner, there may be significant differences in the everyday practice in complaint matters.

7. Institutional Representation Two systems can be distinguished with regard to institutional representation:228 while Germany, Denmark, France, Italy, Luxembourg, the Netherlands, Poland, and Spain have introduced systems of institutional representation, Belgium and the United Kingdom do not provide for any form of institutional representation. In Belgium, representation of soldiers is achieved by trade unions which participate in the negotiation of service conditions.229 In the United Kingdom, commanding officers are considered to be responsible for the welfare of the service personnel under their command. It is thought that any form of representation runs contrary to the idea of the services as a hierarchical and disciplined body. In Denmark,230 France,231 Germany,232 Luxembourg, Poland,233 and Spain,234 the spokesmen are elected. In France and Germany spokesmen are elected for each category within a unit and in Italy for each category within each service branch. In Denmark, on the other hand, spokesmen are elected for the whole unit. In Spain the spokesmen are found only within the Staff Headquarters of each service branch.235 The competencies of institutional representation in France are not as farreaching as in Germany. Still, certain forms of representation have been developed through which the soldiers can participate in service affairs. There are

228

Institutional representation refers to representation of soldiers' interests within the armed forces. Representation through trade unions is dealt with under V. 1 c).

229

Loi du 11 juillet 1978 organisant les relations entre les autorités publiques et les syndicats du personnel militaire des forces terrestre, aérienne et navale et du service médical, Moniteur belge, 28 August 1978; Arrêté royal du 25 avril 1996 portant exécution de la loi du 11 juillet 1978 organisant les relations entre les autorités publiques et les syndicats du personnel militaire des forces terrestre, aérienne et navale et du service médical, Moniteur belge, 1 May 1996, see above V.l.c. 230

Act on Cooperation in Defence of 1967.

231

See J. Isnard, Les armées serant appellées à élire des représentant dans chaque formation locale, Le Monde, 7 May 2001. 232

Sect. 2-5 SBG.

233

Decision of the Ministry of Defence No. 213/MON of 29 October 1999.

234

Royal Decree 258/2002, 8 March 2002.

235

Art. 151 Law 17/1999.

Comparison of European Military Law Systems

115

category presidents (président de categorie), participating commissions (commission participative), councils of military functions (Conseil de la fonction militaire, CFM) for each branch of the armed forces, and, finally, the Conseil supérieur de la fonction militare (CSFM), which has existed since 1969. All of these institutions exercise advisory functions.236 Since 2001, the presidents of the categories have been elected. The members of the CFM and the CSFM are still drawn by lot. The CSFM is to be consulted in order to give advice on questions concerning military functions.237 According to the jurisprudence of the French Conseil d'Etat, the CSFM must be consulted on any question of general nature concerning military functions, service conditions, or the soldier's status.238 The 74 members of the CSFM represent different military ranks and the different branches of the armed forces. Its procedure and its functions are laid down in a decision of 20 January 2000.239 An elaborate system of institutional representation exists in the Netherlands. There are two forms of representation:240 An institutional system of organised consultation and a system of co-determination within the single unit. Under the institutional system of organised consultation, representatives of the soldiers' trade unions participate in negotiations on working conditions and pay within commission responsible for these matters. The trade union representatives must consent to every issue which concerns the rights and duties of soldiers and civilians. The system provides for dispute settlement mechanisms. The consultative organs on co-determination in all units, medezeggenschapscommissies, are elected by the soldiers.241 The head of the unit (the commander) must consult the commission of representatives in all matters concerning the unit except on individual personnel matters. This includes the implementation of the general personnel policy in the unit, the manner in which the conditions of work and the service are implemented, matters concerning safety, health, and well-being in relation to work in the unit, the organisation and working methods in the unit, and matters touching on the living conditions in the unit. If the commanding officer does not follow an advisory opinion of the commis-

236

Law No. 69/1044 of 21 November 1969. Art. 3 SGM and Decree No. 1999/1228 of 20 December 1999. 238 Conseil d' Etat, 27 October 1978, Lamende, Ree. CE, p. 394. 239 Arrêté pourtant règlement intérieur de CSFM et de CFM. 240 Decree on Organised Consultation Sector Defence (Besluit georganiseerd overleg sector Def ernie), (Stb. 1993, 353). 241 Royal Decree on Co-Determination with Regard to Defence Personnel (Besluit medezeggenschap defensie), (Stb. 1999, 361). 237

116

Georg Nolte and Heike Krieger

sion, the dispute can be brought before a committee for dispute settlement. These rules do not apply, inter alia, for personnel working for a unit abroad that is not, or not exclusively, under Dutch command. In comparison, the distinctiveness of the German system does not result from the fact that institutional representation exists but from the extent of the rights granted. A comparable situation can be found only in the Netherlands, but even there, it is not applicable in multinational units abroad. The competencies of institutional representation in Germany are quite extensive if compared with the standards of other states. Firstly, spokesmen in Germany hold precisely defined competencies in personnel matters, while spokesmen in Denmark and Spain possess only broadly phrased competencies referring to soldiers' interests. Secondly, spokesmen in Germany are responsible for a relatively small group of soldiers compared to those in Denmark and Spain. Thirdly, while in Germany and the Netherlands an agreement between the spokesmen and the soldiers is necessary in certain cases, in Denmark, France, Italy, and Spain their means of representation are merely consultative. Finally, spokesmen in Germany are better legitimated than their counterparts in France and Spain, since they are elected, whereas the representatives in France and Spain are drawn by lot.

VI. The Relationship of the Superior to Subordinate Personnel 1. Legal Rules Concerning the Relationship Between Superior and Subordinate a. Definition Since hierarchy, command, and obedience are essential to all military systems, it is not surprising that the position of the superior is defined in a very similar manner in all armed forces under review. Those who lead a military unit are competent to give orders to subordinate soldiers. However, there are some differences with regard to the question who is superior under which conditions. This depends more on military tradition than on legal considerations. All armed forces determine the position of superior by rank or function. The military law systems of Belgium, Denmark, and France242 start from the understanding that the superior is a superior because of rank, while the

242

Arts. 3 et seq. RDGA.

Comparison of European Military Law Systems

117

military law systems of Germany,243 Luxembourg,244 the Netherlands,245 Poland,246 Spain,247 and the United Kingdom 248 basically define the superior according to his position or his function. Italy combines both aspects.249 In France,250 Germany,251 and Italy,252 the position of the superior can also be based on a specific attribution of command. A superior by virtue of declaration is provided for in the military law systems of France, Germany, and the United Kingdom, with certain differences between each system. With the exception of France and Germany, all military law systems provide for a position of the superior based on seniority. In Spain, the position of the superior can even be based on age.253 In Belgium and in the Netherlands, the position of the superior is based upon rank and within rank on seniority. This is reflected in the rules on disciplinary power in Belgium. If the superior wishes to impose a disciplinary measure on a senior soldier, he must transfer the matter to his superior officer(s). The most senior general must impose disciplinary measures against high ranking officers.254 In Luxembourg, the position of the superior is likewise based upon rank and, in the case of same rank, on seniority.255 In Denmark 256 and in the United Kingdom, seniority is a criterion for emergency situations. The military law systems of France, Germany, and the United Kingdom include the position of the superior upon declaration, especially in situations of emergency. In the absence of a commanding officer and a second in command of the unit, "the senior officer present of the armoured

243

Sect. 1 (1) of the Administrative Order on the Position of the Military Superior (Vorgesetztenverordnung) of 4 June 1956.

244

Art. 5 Law of 16 April 1979.

245

Art. 67 WMSr.

246

General Rules on the Behaviour in the Polish Armed Forces (Regulamin Ogólny Sil Zbrojnych Rzeczpospolitej Polskiej"); Decision of the Ministry of Defence No. 62/MON of 5 July 1994. 247

Art. 81 OR.

248

Queen's Regulations of the Armed Forces (1975), para. 2.016.

249

Art. 12 (1) lit. b R D M .

250

Art. 4 R D G A .

251

Sect. 5 of the Administrative Order on the Position of the Military Superior (Vorgesetztenverordnung). 252

Art. 12 on the Regulation on Military Discipline 1986.

253

Art. 81 OR.

254

Art. 35 RDF.

255

Art. 5 of the Law of 16 April 1979.

256

Art. 4 (1) of the Order of 1987.

118

Georg Nolte and Heike Krieger

service of which the unit forms part is to exercise command over all personnel serving therein". In circumstances not covered by these arrangements "command is to be exercised by the most appropriately qualified senior officer, warrant officer, or NCO present, but during operations is not to be exercised by medical or dental officers or chaplains, except over the personnel of medical and dental units and patients".257 Likewise, in Poland, the position of the superior in emergency situations is determined by military rank, seniority within the rank, and general seniority. b. Duties of the Superior

In addition to the general duties of soldiers, the military law systems of the countries under review also describe the specific duties of the superior. As in the case of the general duties of soldiers, the basic duties of superiors within the countries under review are quite similar. The duties of superiors are partly included in general laws on the status of soldiers, and partly in the military disciplinary and penal law. The following duties are contained in most of the military law systems under review: The duty to set a good example for one's subordinates,258 responsibility for the discipline of subordinates,259 the duty to care for one's subordinates,260 responsibility for orders and their implementation,261 the duty to express oneself in a manner that upholds confidence in the superior,262 as well as the duty not to maltreat or abuse one's subordinates or to expose them to degrading treatment.263

257

Queen's Regulations for the Army (1975), para. 2.018.

258

Belgium: Art. 12 RDF; Germany: Sect. 10 (1) SG; Luxembourg: Art. 3 (5) of the Law of 16 April 1979; Spain: Art. 77 OR; Poland: Art. 43 (1) SWZZ. 259

Belgium: Art. 11 RDF; Denmark: Art. 15 MSL; Germany: Sect. 10 (2) SG; Luxembourg: Art. 3 (5) and (6) Law of 16 April 1979; Spain: Art. 87 OR; United Kingdom: Queen's Regulations for the Army (1975), para. 5.085. 260

Belgium: Art. 12 RDF; Denmark: Art. 21 MSL; Germany: Sect. 10 (3) SG; Luxembourg: Art. 3 (5) and (6) of the Law of 16 April 1979; Poland: Art. 43 (1) SWZZ; Spain: Art. 99 OR; United Kingdom: Queen's Regulations for the Army (1975), para. 3.001. 261

Belgium: Art. 11 RDF; Denmark: Art. 15 MSL; Germany: Sect. 10 (5) SG; Luxembourg: Art. 6 (2) of the Law of 16 April 1979; Spain: Art. 79 OR; United Kingdom: Queen's Regulations for the Army (1975), paras. 3.001 and 5.085. 262

Belgium: Art. 11 RDF; Denmark: Art. 15 MSL; Germany: Sect. 10 (6) SG; Luxembourg: Art. 3 (6) of the Law of 16 April 1979; Spain: Art. 77 OR. 263 Inter alia, Germany: Sect. 30 et seq. WStG; Poland: Arts. 350-353 of the Criminal Code; Spain: Arts. 103-106 CPM.

Comparison of European Military Law Systems

119

In Spain, numerous duties of the superior are laid down in the Royal Ordinances. Since general clauses are often used, there is some criticism concerning the principle of legality since it can be difficult for the soldier to foresee which behaviour would infringe a disciplinary provision. In particular, the exercise of the power to command is regulated in detail in Articles 77-122 OR. In Article 15 (5) RDFA, the sexual abuse of subordinates is explicitly prohibited. Spanish military law also penalises commanders for failures during combat action, such as a loss of control and the power to command,264 or the negligent loss of a tactical position.265 In the United Kingdom, the duties of the commanding officer are regulated in detail in the Queen's Regulations for the Army (1975). The commanding officer is responsible for the command, the education, the security, the discipline, the health, the well-being, the morale, and the general operational ability of his subordinates. Moreover, he must guarantee that all categories of soldiers are adequately trained for operations. Likewise, the superior is responsible for the well-being of the soldiers' families as well as for contacts with civilian authorities and the local population.266 Moreover, there are certain criminal law provisions, such as Section 65 Army Act 1955 - ill-treatment of men of inferior ranks - which impose certain duties on the superior. The most extensive rule with regard to the use of force is found in Spain. According to the principle of proportionality and according to the specific requirements for securing discipline in difficult situations, it is possible under Spanish law to justify the use of force in exceptional circumstances. Article 128 OR states: "during a campaign (i.e. combat situations), every commander [...] will use the maximum rigor with any soldier attempting to retreat unilaterally, leave his post, or to disobey received orders." In the United Kingdom, the Army Act 1955 and the Queen's Regulations for the Army (1975) disallow the use of force by a superior in such situations. He may, however, use reasonable force to prevent a crime in accordance with general criminal law. Thus, he would be entitled to point a loaded weapon at a soldier who appears to be disobeying his order not to kill a civilian. In Denmark, the use of force in order to achieve compliance with an order is, as a general rule, forbidden. However, in critical situations the use of physical force may be justified.267

264

Art. 130 CPM.

265

Arts. 133 et seqq. CPM.

266

Queen's Regulations for the Army (1975), para. 3.001.

267

Cf. Article 8 of the Military Criminal Code.

120

Georg Nolte and Heike Krieger

2. Subordination of Soldiers to the Command of a Superior of Foreign Armed Forces The subjection of armed forces (individual soldiers, units) to the command of a superior who belongs to foreign armed forces is an issue of constitutional law in most of the countries under review. Unfortunately, our study indicates that there is very little academic debate on the limits of the permissibility of such a subordination. In order to give an indication of the problems which are connected with such a subordination of armed forces under foreign command, we should first describe the German academic and practical debate. From a German point of view, the subjection of a soldier to the command of a superior who belongs to foreign armed forces is an issue of constitutional law. It is a general constitutional rule in Germany that the power to restrict the fundamental rights and liberties of a person must be based on an Act of Parliament or on executive regulations which must themselves be based on a rather specific (see Article 80 of the Constitution) delegation of legislative powers by an Act of Parliament. This rule is designed to ensure the democratic legitimacy and accountability of restrictions of rights. There are, however, two specific provisions which modify this rule for the issue of non-German command over German troops: Article 24 (1) of the German Constitution allows the transfer of the exercise of public authority to an "interstate entity" (zwischenstaatliche Einrichtung). Article 24 (2) permits Germany's integration into a system of mutual collective security. Taken together, these rules are said to prohibit a transfer of public authority to a single foreign state or to different foreign states.268 An "interstate entity" in the sense of Article 24 (1) must at least have international legal personality. It is therefore impossible to transfer public authority to a multinational unit which has no separate legal personality (and certain additional structural qualities). According to German Constitutional Law, the full subordination of a German soldier under the command of a foreign commander (at least outside collective security systems according to Article 24 (2) GG) requires a transfer of governmental authority according to Article 24 (1) GG. Such a transfer of authority has not been brought about within NATO since only certain limited powers of command have been transferred.269 According to Section 7 SG, the

268

F. Kirchhof, Deutsche Verfassungsvorgaben zur Befehlsgewalt und Wehrverwaltung in multilateralen Verbänden, (1998) Neue Zeitschrift für Wehrrecht, p. 152 at p. 153; Jarass, in: Jarass/Pieroth (ed.), GG, Art. 24 No. 5. 269

NATO was not recognised as a system of collective security until the so-called "Somalia-Decision" of the German Constitutional Court; BVerfGE 90, p. 286 at pp. 387 et seqq.

Comparison of European Military Law Systems

121

German soldier receives an order from his superior in the sense of Section 11 (1) SG to follow the orders of the foreign commander (Anweisung auf Zusammenarbeit).210 This first order is revocable at any time and limited in scope. It does not contain any disciplinary powers. Thus, the subjection of German troops or soldiers to NATO command is not sufficiently far-reaching as to constitute a "transfer which requires specific legislative approval" (in addition to the existing legislative approval to the NATO Treaty).271 At which point a more integrated command structure requires specific enabling legislation remains open to debate. The transfer of disciplinary powers to an international institution is the most obvious case which would likely require a specific parliamentary basis. The other countries under review use comparable models in order to subordinate their soldiers to the command of a foreign superior within NATO structures. The national understanding of a revocable transfer which is limited in scope finds its equivalent in the NATO terms "full command" on the one hand and "operational command" and "operational control" on the other. These terms not only serve the purpose of defining national constitutional requirements with respect to the limitation of the transfer of command power but also the purpose of defining a military function 272 . They are used in the national terminology of most of the countries under review as a description of the differentiation between the transfer of full or only a more limited command power. According to the prevailing opinion in all countries, the present practice of transfer of "operational command" or "operational control" does not require a transfer of governmental authority which would have to satisfy specific constitutional requirements. It is generally accepted that only operational command or operational control has been transferred so far, whereas full command remains with the national authorities. Within these limits, governments are entitled to subordinate their forces under foreign command without participation of their parliaments. This prevailing view has, however, come under heavy attack in the German academic literature. After all, even under "operational command" or "operational control", for all practical purposes and from the perspective of the sol-

270

Zentrale Dienstvorschrift ZDv 1/50, No. 30.

271

D. Fleck, Befehls- und Kommandogewalt über deutsche Streitkräfte in multinationalen Verbänden, in: R. Geiger (ed.), Völkerrechtlicher Vertrag und staatliches Recht vor dem Hintergrund zunehmender Verdichtung der internationalen Beziehungen (BadenBaden, 1999), p. 163 at p. 172; T. Stein, Rechtsfragen des Eurokorps und der deutschfranzösischen Brigade, in: C. Tomuschat (ed.), Rechtsprobleme einer europäischen Sicherheits- und Verteidigungspolitik (Heidelberg, 1997), p. 53 at p. 60. 272

BVerfGE 90, p. 286 at p. 308.

122

Georg Nolte and Heike Krieger

dier, the foreign commander may take the decisive step which restricts his rights, even if the disciplinary power remains with the German authorities. Another argument against the prevailing view is that it circumvents the purpose of the constitutional assignment of command power to the Minister of Defence, who is responsible to the German Parliament for the exercise of this power. He cannot be held accountable, it is argued, if officers who are beyond his control exercise this power.273 One author who agrees that the prevailing view is unconvincing nevertheless arrives at the conclusion that the power to issue commands can be transferred to a large extent by executive agreement or order to foreign soldiers. He postulates that it is possible to conceive of the foreign soldier as exercising German public authority by way of his limited functional integration into the German armed forces.274 A counter-argument to this theory is that the foreign commander normally wields a wide discretion which he exercises in the spirit of his own national armed forces, and that it is a fiction to assume that his decisions will be in the spirit of the German Minister of Defence, a spirit which has been imbued into the German officers but not foreign officers by various means of education and instruction. A precise legal differentiation between the transfer of command authority over the individual soldier on the one hand, and over whole units on the other, has not yet been developed in any of the countries under review. The opinion prevails that the command authority of a foreign commander is exercised only towards individual soldiers (even if it is in their capacity as commanders of certain units). This means that it is exercised either towards the commander of the whole unit (and thus only indirectly towards the unit), or directly towards an individual soldier who belongs to such a unit. In this respect there is no constitutionally relevant difference between the cooperation within NATO Headquarters and the cooperation between soldiers of different nationalities during combined operations on foreign territory (e.g. KFOR). According to German Constitutional Law, there is a restriction of governmental authority according to Article 24 (2) GG in both cases. A more extensive transfer of command authority or command power is possible within multinational units, if it is based on an international treaty which has been ratified by the relevant parliament. The 1 (German/Netherlands) Corps is such a unit. If the so-called "integrated directing and control authority" (as it is established by Article 6 of the Convention on the General Conditions for the 273

J. Wieland, Die Beteiligung der Bundeswehr an gemischtnationalen Einheiten, in: R. Grawert et al. (eds.), Festschrift für Ernst-Wolf gang Böckenförde zum 65. Geburtstag (Berlin, 1995), p. 219 at p. 232. 274

Kirchhof, supra n. 274, at pp. 157-161.

Comparison of European Military Law Systems

123

1 (German/Netherlands) Corps) exceeds the NATO practice, is a question which can be left open. A specific issue in regard to the transfer of governmental authority arises from the bi-national guard service exercised by the 1 (German/ Netherlands) Corps. By placing the guard soldiers under the exclusive command of the receiving state for the duration and function of their guard service (Article 10 of the Convention on the General Conditions for the 1 (German/ Netherlands) Corps),275 command power over these soldiers may very well have been transferred. The issue has prolonged the process of legislative approval in the Netherlands, but it has so far not been discussed as a problem in Germany. a. Belgium In Belgium, it is the official position that no transfer of authority takes place in the case of the Eurocorps in which Belgium participates under the integration principle. In Belgium, the distinction is drawn between "full command" and "operational command". Belgian authorities merely delegate operational command over some parts of the forces to a foreign or an international authority. This is achieved by a special executive agreement in the form of an "accord en forme simplifiée". This practice is constitutionally accepted in Belgium where a Royal Decree of 9 January 1951 established the power of the Ministry of Defence to place some parts of the armed forces under foreign operational command.276 It is held that this designation does not amount to a transfer of the power of full command, since the decision on the use of forces ultimately remains with the Belgian authorities. Inversely, Belgian authorities will never possess full command over foreign troops. Only operational command will be transferred by the foreign state concerned. As is the general practice in all countries under review, disciplinary power over Belgian soldiers remains with Belgian authorities, so that the soldier is still subject to Belgian military law. b. Denmark In Denmark it is also permissible to subordinate troops at least partly under the command of foreign superiors without effecting a true transfer of public authority. The legal basis for this is enshrined in Article 12 (1) and (2) LFO. According

275

Art. 10 (2): For the purposes of the execution of their guard duties, bi-national guards are exclusively subordinated to the competent superior guard authorities of the receiving state. 276

Arreté royal du 9 janvier relatif à l'affectation des forces belges à l'exécution du Traité de l'Atlantique-Nord, Moniteur belge, 11 janvier 1951, p. 145.

124

Georg Nolte and Heike Krieger

to Artide 12 (1), the powers of the Chief of Defence can be delegated (delegere) to the chief of an international force or mission if the mission aims to fulfil purposes mentioned in Article 5 and 6 LFO. According to Article 12 (2) LFO, powers can be delegated (delegere) to the chiefs of certain NATO units when NATO forces are used to fulfil NATO tasks. The effects of such delegation are comparable to those of the Anweisung auf Zusammenarbeit. According to Danish legal theory, a delegation must be limited in purpose and scope. The practice complies with these requirements by way of agreements between the Danish Government and the international organisation concerned. This agreement comprises a precise definition of the purpose and authority of the multinational unit, and sometimes also limits the geographical range of the unit. To ensure that the powers given to the foreign superior are exercised in accordance with the agreement, ultimate national control is maintained. In addition, the Danish superior commander of the force must report to Danish authorities every violation of the terms of the agreement. Furthermore, the responsibility for administrative matters related to the participation in the multinational force is not delegated. Disciplinary power over the participating Danish soldiers rests with the Danish authorities. Finally, the delegation can always be withdrawn. It is crucial for the system in Denmark to consider Danish participation in international military operations as delegations of powers because, according to the provision of Article 20 of the Constitution, a transfer of sovereignty requires an elaborate procedure. The necessity to follow this procedure would in practice mean that participation in such operations would be impossible. The procedure of Article 20 of the Danish Constitution would be necessary if nonDanish authorities were able to impose duties or confer rights directly on Danish citizens. With the limitations, for instance, concerning jurisdiction over soldiers, agreements on multinational units and operations do not amount to a transfer of sovereignty. Therefore, they can be concluded by decision of the Government without the consent of Parliament. c. France In France, placing soldiers under the command of a foreign superior is not considered to pose a legal problem as long as the command power ultimately resides with the President of the Republic. The President is the Chief of the Armed Forces, and all command power is exercised in his name by the entitled commander. In practice, soldiers are not directly subordinated to the command of a foreign officer. There is always a direct French superior in the theatre {Commandement des éléments français (COMELEF)). He will receive an instruction to co-operate from the French CEMA. Thus, only operational com-

Comparison of European Military Law Systems

125

mand is transferred. As in all countries under review, disciplinary power over French soldiers remains with the national authorities. The Conseil d' État has decided that "the state cannot transfer the power to evaluate one of its agents to a third country or to an organisation".277 d. Italy As all other countries under review, Italy uses a model comparable to the German Anweisung auf Zusammenarbeit. Since the direct subordination of an Italian soldier to the command of a superior of foreign armed forces limits Italian sovereignty, the requirements of Article 11 of the Italian Constitution would have to be fulfilled if such a transfer were to be contemplated.278 It is the Italian commander of a unit who receives orders from the commander of the international or multinational force, not the individual soldier. The Italian commander, thus, has control over such orders. He can ensure their conformity with the provisions of the Italian Constitution. Likewise, disciplinary power remains with the Italian authorities. e. Luxembourg According to Article 1 (2) of the Law of 16 April 1979, military personnel on operations abroad remain subject to the law of Luxembourg. The situation in Luxembourg is comparable to the so-called Anweisung auf Zusammenarbeit, since full command remains with the Grand Duke and thus with the Government. If, for example, soldiers from Luxembourg were to take part in a peacekeeping operation, they would have to comply with the orders, directives, and instructions of the Forces Commander in relation to the authorisation of carrying and using firearms on the basis of Article 16 LOMP.279 f

The Netherlands

The distinction between operational and full command is used in the Netherlands, too. Since Article 97 (2) of the Dutch Constitution vests supreme authority over the armed forces in the government, it would be difficult to subordinate a Dutch soldier to the exclusive command of a foreign officer without inter-

277

CE, 11 October 1999, M. Calleja.

278

Art. 11 of the Italian Constitution: "Italy [...] shall agree, on conditions of equality with other States, to such limitations of sovereignty as may be necessary to allow for a legal system that will ensure peace and justice between nations [...]". 279

Article 16 LOMP.

126

Georg Nolte and Heike Krieger

fering with the constitutional provision on supreme authority. A two-thirds majority in both Houses of Parliament must approve a treaty which contains a transfer of authority diverging from constitutional provisions. This was, however, not the case with the treaty which created the bi-national guard duties of the 1 (German/Netherlands) Corps, presumably because the foreign superior's command is not exclusive. The Netherlands also use a construction comparable to the Anweisung auf Zusammenarbeit.280 A Dutch soldier must comply with a foreign soldier's orders on the basis of the duty to follow a Dutch service regulation, dienstvoorschrift.The Algemeen militair ambtenarenreglement, which is such a service regulation, provides in Article 137 that the soldier must perform the "activities and services assigned" (opgedragen) to him to the best of his ability. The expression "activities assigned to him", dienstopdracht, includes all activities assigned by a foreign superior. Not to comply with these assignments constitutes a disciplinary and criminal offence. According to this theory, jurisdiction over the soldiers remains with the national authorities. Dutch law, however, contains another possible legal theory for addressing the question of subordination, although it has thus far not been used. Article 67 WMSr defines the relationship between superior and subordinate. The provision contains the expression "militairen" which is defined in Article 60 WMSr as "Dutch soldiers". Therefore, as a general rule, there cannot be a relationship of superior and subordinate between a Dutch and foreign soldier. However, under Article 60 a WMSr, a status equal to Dutch soldiers can be granted to foreign soldiers by royal decree for the application of certain provisions listed in that same decree. There also exists yet another possibility to create a legal fiction that enables the establishment of a superior-subordinate relationship with foreign soldiers: Article 67 a WMSr permits the equation of foreign ranks with Dutch ranks by Royal Decree. In addition, it would be necessary according to Article 75 a WMSr for the relationship between superior and subordinate to be established by Royal Decree or an authority determined by Royal Decree. The Act of Parliament concerning the Use of Force by Guards is currently being amended in order to allow for bi-national guard patrols in the 1 (German/Netherlands) Corps. In autumn 2002, the Act was still in the process of being legislated. The provision comparable to the German one is designed to make it possible for a German soldier to serve under the direct command of a Dutch superior in the Netherlands for the purpose of guard duties (Article 2 (2 sub b) of the bill). The provision would apply not only to German soldiers,

280

AMAR.

Comparison of European Military Law Systems

127

but also to any other foreign soldier within the meaning of the intended provision. These are members of foreign armed forces who have been so designated by the Minister of Defence and who for the purposes of guard and security duties are under the command of a member of the Dutch armed forces or a civilian of the Ministry of Defence. The designation is only possible pursuant to a treaty or a decision of an international organisation. By this provision the Netherlands would, according to Dutch legal opinion, receive full command over German soldiers in the Netherlands with respect to guard duties. g. Poland Section 15 of the Minister of Defence General Rules of Conduct 281 states that, generally, soldiers of the Polish Armed Forces cannot be subordinated to superiors of foreign armed forces. However, such a relationship can be agreed upon for certain tasks such as peace-keeping measures, manoeuvres, or training operations. The Polish system resembles the French insofar as the President, acting as the Supreme Commander of the Polish Armed Forces, decides to deploy a specific military unit abroad. Thus, it is primarily operational command which is transferred in cases of subordination both to foreign forces and to international organisations. The delegation of operational command is not perceived to be an issue of the transfer of public authority, either. For instance, Article 4 (1) of the Agreement establishing LITPOLBAT states that the commander of the battalion, as well as other battalion superiors, have the right to command subordinated soldiers irrespective of their nationality. According to Article 5 (2) of that agreement, however, disciplinary power over soldiers remains with their national superiors. h. Spain In Spain, the subordination of soldiers is dealt with in the framework of each multinational organisation, and depends on the type of participation. If Spanish units are assigned to permanent military organisations, such as NATO or the Eurocorps, each organisation has its own legal system of integration. Normally, an Agreement of Accession is concluded. A delegation of powers from the Chief of the General Staff of the Defence of Spain (Jefe del Estado Mayor de la Defensa de España) to the Chief of the multinational unit takes place. In

281 General Rules of Conduct for the Armed Forces of the Republic of Poland (Regulamin Ogólny Sil Zbrojnych Rzeczpospolitej Polskiej)\ Decision of the Ministry of Defence No. 62/MON of 5 July 1994.

128

Georg Nolte and Heike Krieger

this agreement, questions of jurisdiction and restrictions of competencies are regulated. Without consent of the Spanish authorities, these agreements cannot be altered. Only operational command is transferred. Since soldiers remain under national jurisdiction in all disciplinary matters, no full transfer of authority takes place. i. The United Kingdom In the United Kingdom, there is a specific law dealing with the subordination of soldiers. However, it has never been invoked. Subordination is permissible if regulations are made by the Defence Council to vest "command over any of Her Majesty's forces, or any part or members thereof, in persons being members of forces of countries outside Her dominions, and as to the extent to which such command is to be exercised".282 In this case, even disciplinary powers may follow. However, the Defence Council can always revoke the decision. In practice, a position similar to the Anweisung auf Zusammenarbeit is adopted. A commander may state in standing orders that certain members (or the whole unit) should obey the lawful commands of an officer of a foreign armed force. It would then be an offence under British military law to fail to comply with these standing orders if the soldier knew, or might reasonably be expected to have known, of such an order.283 Since the foreign commander would have no disciplinary powers over the British soldier, who remains subject to British military law, a transfer of sovereignty does not take place. j.

The Specific Problem of the Danish Participation in EU-led Multinational Operations

There is a specific limitation with regard to Danish participation in multinational units in the EU-framework. Denmark approved the Maastricht Treaty with four special reservations. One of these reservations concerns participation in military cooperation within the EU according to Article 13 (1) and 17 EU Treaty. The reservation received the status of a part of the treaty by Protocol 5 to the Amsterdam Treaty in 1997. The Protocol states that Denmark is not in any way obliged to take part in the military cooperation of the EU, but that on the other hand Denmark will not prohibit the other countries from going for-

282 283

Sect. 16 Armed Forces Act 1966. Sect. 36 Army Act.

Comparison of European Military Law Systems

129

ward in this area (Article 6). Since the reservations were part of the ratification of the Maastricht Treaty in 1993, which required a referendum, they can be withdrawn only by another referendum. Therefore, Denmark will not participate in any cooperation under EU auspices in the near future.

VII. Sanctions Once again, the countries under review can be roughly grouped into two systems with regard to sanctions for violations of soldiers' duties: a two-layered system which distinguishes between disciplinary law and criminal law, and a system which does not make this distinction. The first system is the most widespread in the countries under review, whereas the second can be found only in Denmark and the United Kingdom. Two-tiered systems tend to divide military offences into two classes: Crimes that are subject to judicial punishment, and breaches of discipline that are subject (only) to administrative action. Onetiered systems recognise no such distinction, regarding all military offences as crimes. Before going into the specifics of the prevailing system, it may be helpful to describe the systems of Denmark and the United Kingdom in more detail. In Denmark, sanctions are regulated in the Administration of Military Justice Act (Militar Retsplejelov - MRPL). The Danish system consists of three types of sanctions: criminal sanctions, disciplinary sanctions, and punishment without criminal trial. The so-called "punishment without criminal trial" (Articles 29-36 MRPL) is used for minor infringements. It is a mixture of disciplinary and criminal measures: On the one hand, these measures are regarded as punishments in a criminal case, while on the other hand, disciplinary superiors can impose them without trial. It follows from Article 37 MRPL that disciplinary law and criminal law are not two separate systems. The provision states in paragraph (1) that "disciplinary measures can be used only in cases where a criminal act has been committed." The decision on which measure to take depends on the severity of the criminal offence. It is normally preferable to use disciplinary measures instead of minor criminal sentences. In the United Kingdom, each of the three services currently has its own separate Disciplinary Act, but there will be a tri-service Disciplinary Act by 2006. The Army Act 1955 is the most pertinent one for our study. Part II of the Army Act 1955 sets out the various offences under the heading 'Discipline and Trial and Punishment of Military Offences'. Moreover, Section 70 incorporates the whole of the criminal law of England and Wales. Sanctions may be imposed either by the commanding officer or by a court-martial. In the Army, the commanding officer normally holds at least the rank of a Lieutenant Colonel. The

130

Georg Nolte and Heike Krieger

competence of the commanding officer depends either on the rank of the disciplined soldier or on the kind of offence concerned. The commanding officer is competent to deal with a charge against an officer summarily if that officer is below the rank of colonel. An officer of higher rank must be dealt with by a court-martial. The commanding officer is entitled to deal with most of the disciplinary offences included in the Army Act 1955, as well as with certain criminal offences, such as common assault, driving without due care and attention, destroying or damaging property up to a value of £ 2000, unlawful possession of a controlled substance (illegal drugs), theft, and driving a vehicle under the influence of excessive alcohol. For all other criminal offences, a court-martial is competent.

1. Disciplinary Law Although it is difficult to speak of a common European model of disciplinary law, certain features are common to all systems, including Denmark and the United Kingdom. In the majority of countries, disciplinary sanctions can be inflicted only by officers not lower than the rank of captain, the commanding officer of a military unit being the principal source of discipline. Higher military commanders usually have power to impose disciplinary sanctions on officers. Often, the Minister of Defence possesses an overall competence to inflict more severe punishments on all ranks. The forms of punishment so inflicted are normally a kind of reprimand, loss of certain privileges for specified periods, especially the so-called confinement to barracks, and certain forms of arrest. Although most countries under review also impose fines, Belgium, Italy, and Spain consider fines to be a sanction incompatible with the honour of the soldier. Many countries under review differentiate between simple and grave disciplinary measures (Belgium, France, Germany, Italy). Grave disciplinary sanctions are those that concern the status and career of the soldier, such as reduction in rank or dismissal, whereas reprimand or confinement to barracks are considered to be simple disciplinary measures. In most of the countries under review, the accused may complain of unjust or unduly severe punishment to the commanding officer's superiors. Such complaints may proceed to the highest level, the purpose of which is to guarantee that the disciplinary decision of the commanding officer is subject to substantial review. In Germany, the tribunals which hear soldier's complaints also deal with more serious breaches of discipline, and may impose punishments affecting a soldier's career, such as loss of rank or appointment, dismissal, or forfeiture of pension rights. In most countries, with the exception of Denmark, the soldier may appeal to a tribunal. The European Convention on Human Rights and various rulings on its appli-

Comparison of European Military Law Systems

131

cability to military trials have caused some of the countries under review - in particular the United Kingdom - to overhaul or amend their military judicial processes. These reforms have the aim of bringing the countries concerned into compliance with Articles 5 and 6 ECHR. These rights provide that no one may be deprived of his liberty save by a competent court, and that the accused may declare his right upon a criminal charge to a fair and public hearing by an independent and impartial tribunal established by law. a. Disciplinary Power In the countries under review, there is no clear common pattern with respect to the question of who is competent to impose disciplinary measures, i.e. who has the disciplinary power. Even though, in general, the commanding officer holds disciplinary power, disciplinary superiors do not necessarily have the same position or the same rank within the military hierarchy of each country. As a general rule, disciplinary power depends on the functional position of the superior. The disciplinary superior can either be entitled to impose all disciplinary sanctions, or distinctions can be made on the basis of the gravity of sanctions imposed. In Belgium,284 Denmark,285 France,286 Germany,287 Italy,288 Luxembourg,289 and Spain,290 the direct disciplinary superior is competent to impose minor sanctions. In these countries, disciplinary power depends, in principle, on the position of the superior, on the rank or category of the soldier who has committed a disciplinary wrong, and on the intended sanction.291 If harsher sanctions are to be imposed, the competent authority in Belgium is the Commander-in-Chief of the regiment (chef de corps)·,291 in Spain, the Ministry of Defence or the King holds the disciplinary power in cases of sanctions that concern the status of the soldier; in Denmark, only the military prosecutor

284

Arts. 30-36 RDF.

285

Art. 39 MRPL.

286

Art. 34 (3) RDGA.

287

Sect. 27-31 WDO.

288

Art. 56 RDA.

289

Arts. 16 and 25 Law of 16 April 1979.

290

Art. 5 RDFA.

291

Disciplinary power is dealt with in detail in the following sources: Belgium: Arts. 30 et seq. RDF; Denmark: Decree No. 64 of 22 January 1985, Kundgorelse for Forsvaret B. 5 - 1985, pkt. 2; Germany: Sect. 28 WDO; Luxembourg: Art. 25 Law of 16 April 1979; Italy: Art. 56 RDA; Spain: Arts. 27-43 RDFA. 292

Art. 31 RDF.

132

Georg Nolte and Heike Krieger

(who is not a superior in the true sense) may impose the harshest disciplinary sanctions;293 in Germany, severe sanctions require the decision of an Administrative Military Court (Truppendienstgericht).294 In contrast, in Poland and in the United Kingdom, the disciplinary superior is competent to impose all disciplinary sanctions. In Poland, superiors of higher instance are involved only in cases of appeal.295 Likewise, in the United Kingdom the commanding officer is competent for all disciplinary offences. In the Army, the commanding officer usually holds the rank of Lieutenant Colonel. The competence of the commanding officer or of a court-martial depends, as a rule, on the rank of the accused. The court-martial is competent for all officers not lower than the rank of colonel. The most important difference between the German system and those of the other countries under review seems to lie in the fact that in Germany an Administrative Military Court (Truppendienstgericht) is concerned with imposing grave military sanctions which involve further consequences for the soldier's career.296 Only in the United Kingdom is a court-martial competent to impose disciplinary sanctions on all officers not lower than the rank of colonel. Thus, the competence of the court depends on the rank of the officer accused rather than on the severity of sanctions. In none of the other countries do courts seem to be competent to impose disciplinary sanctions in the first instance. However, in most of the countries under review courts are competent in appeal cases. This is the case in Belgium,297 France, and the Netherlands. Thus, sanctions such as a cessation of pay (United Kingdom), reduction in rank (Belgium, France, Spain), prohibition on promotion (Spain), and even definite dismissal from the armed forces may be imposed by a disciplinary superior, while in Germany only the Administrative Military Court would be competent to impose such sanctions. It should be noted that the Netherlands and Spain have included several specific regulations in their disciplinary law concerning soldiers in multinational units or operations abroad. In Spain, Article 49 RDFA provides that the

293

Art. 2 (2) Administrative Order No. 64 of 22 January 1985; Kundgorelse for Forsvaret B.5 - 1985, pkt. 2.

294

Sect. 58 WDO.

295

See, e.g., T. Zielinski, Labour Law: Outline of the System (Prawo pracy: zarys systemu), Warszawa 1999; see also Constitutional Court (Trybunat Konstytucyjny), Judgement No. Κ 26/00 of 10 April 2002. 296

The competence of the courts-martial for criminal offences is not considered in this respect. 297

But only in cases of complaints against statutory disciplinary measures.

Comparison of European Military Law Systems

133

commanding officers of units or other parts of the armed forces which are temporarily separated and stationed abroad hold the disciplinary power irrespective of their rank. Disciplinary power is vested in those officers for the duration of the mission for which the units or groups have been created. Thus, it is ensured that the disciplinary power over the units which are on missions abroad rests with a superior who is taking part in the mission, knows the individual soldier, and is aware of the particular situation. In the Netherlands, disciplinary fines for soldiers on missions outside the country are higher, since these soldiers receive more money than their counterparts at home. b. Relation to Criminal Law In those countries in which disciplinary law and criminal law are considered to be two different systems, the relationship between them must be clarified. Were sanctions to be imposed under both systems for the same deed, it could possibly infringe on the rule of law, the principle of ne bis in idem, and the principle of proportionality. However, mutual recognition of the sanctions under the different sanction systems is only necessary if disciplinary measures and criminal measures can be applied cumulatively: aa. The Cumulative Application of Disciplinary and Criminal Law In France, Germany, Luxembourg, Poland, and Spain, disciplinary measures and criminal sanctions may be applied cumulatively. In France, soldiers who have committed an offence are subject to criminal, disciplinary, professional, and statutory sanctions. Article 30 RDGA provides that the same deed may lead cumulatively to a disciplinary punishment, a professional sanction, a statutory sanction, and/or a criminal sanction. The military law systems of Belgium, France, and Luxembourg consider sanctions that concern the status of the soldier, i.e. the career of the soldier, to be professional or statutory sanctions. These sanctions are treated separately from disciplinary measures (Belgium: petite discipline) such as a reprimand. In Germany and Spain, legal theory holds that disciplinary and criminal sanction systems protect different legal interests and therefore must be completely separated: Disciplinary law is meant to ensure the (future) efficiency of the armed forces through the preservation of discipline. It has thus an educational aspect. The purpose of criminal law, on the other hand, is to hold the perpetrator responsible for a (past) wrong. This theory obviously facilitates the cumulative application of (disciplinary and criminal) sanctions. In Belgium and in the Netherlands, a broader interpretation of the principle ne bis in idem prevails. Therefore, disciplinary law and criminal law are not

134

Georg Nolte and Heike Krieger

applied cumulatively. In the Belgian system, disciplinary and criminal sanctions exclude each other in the sense that criminal conviction or acquittal prevails over disciplinary measures, and may not be supplemented by such measures. 298 However, there is an exception in the case of the so-called statutory disciplinary measures. These disciplinary measures (grande discipline) are comparable to those disciplinary measures which concern (according to German law) the status and career of the soldier. If the soldier is convicted of a criminal wrong and if the so-called Conseil d'Enquête considers the crime to be grave enough, the soldier can be dismissed from the armed forces. In this case, a disciplinary measure is cumulatively applied with a criminal sanction. In the Netherlands, too, disciplinary and criminal sanctions are considered to exclude each other since the violation of a soldier's duties can only constitute either a disciplinary wrong or a criminal act. In Italy, the legal situation is not clear. Although there are rules on mutual recognition of sanctions 299 the Constitutional Court has not decided whether disciplinary sanctions such as confinement or close arrest can be applied together with criminal sanctions or not. In its judgement No. 406/2000, the Court did not clarify whether the principle of ne bis in idem would be violated in such cases. 300 bb. Mutual Recognition of Disciplinary and Criminal Sanctions In those countries in which disciplinary and criminal sanctions are applied cumulatively, the question of mutual recognition arises. Thus, when a court has passed a sentence on a soldier in Germany, the military superior's power to impose further disciplinary measures is restricted. The military superior must not impose disciplinary measures, such as a reprimand, a severe reprimand, a fine, or a confinement to barracks when a criminal sentence has already been given. Disciplinary arrest, reduction in pay, or reduction of pension benefits may be imposed in such a case only if it is necessary to uphold military order, or if the reputation and prestige of the armed forces require that such a measure be taken. 301 In cases of disciplinary arrest, other forms of detention must be deducted from the duration of the arrest. 302 Some of the countries under review apply comparable rules. In Luxembourg, if proceedings before a crimi-

298 299 300 301 302

Art. 43 RDF. Art. 60 C.P.M.P. Italian Constitutional Court (Corte costitutionalé), Ruling No. 406/2000. Sect. 16WDO. Sect. 16 (2) WDO; see also Sect. 39 WDO.

Comparison of European Military Law Systems

135

nal court are pending, the competent disciplinary committee requests that the disciplinary proceedings be suspended until the final decision of the criminal court is made.303 It seems that there are no specific rules on mutual recognition of the disciplinary criminal sanctions systems in France or Spain. In France, disciplinary arrest is not deducted from imprisonment under criminal law. In Poland, these problems do not arise, since only certain disciplinary measures may be imposed if a criminal sentence has been passed. These include an obligation to extend an apology to the person wronged, an obligation to make amends for the damage, and the informing of others in the unit that a disciplinary penalty has been inflicted. Since these disciplinary measures are qualitatively different from criminal sanctions, no conflicts are likely to occur. In Denmark and in the United Kingdom, no specific problems with regard to the relation between disciplinary law and criminal law should arise, since these areas are not considered as belonging to different systems. Thus, the British Army Act 1955 contains both a list of military disciplinary offences and an incorporation of the whole of the criminal law of England and Wales.304 In Denmark, disciplinary measures can be imposed only if a criminal offence has been committed.305 Such measures shall be imposed instead of minor criminal sentences.306 Nonetheless, the question of whether disciplinary measures can be deducted from a criminal sentence can become pertinent in Denmark if an offence is reconsidered as a minor offence, or under the procedure of "punishment without criminal trial" after a decision in the criminal proceedings has been taken. In this case, the principle of ne bis in idem applies, so that a previously applied sanction will be deducted if the same case is tried again. c. The Purpose of Disciplinary Law In all countries under review, disciplinary law serves to secure the efficiency of the armed forces. Certain legal or military interests are protected, such as the good order, discipline, uniformity, reputation, and decency of the armed forces. Moreover, military security is taken into account. In Belgium, France, and Spain, military neutrality is considered as an additional purpose of disciplinary military law. Since Denmark and the United Kingdom do not differentiate between disciplinary and criminal law, the purpose of sanctioning a crime and holding the person who has committed the crime responsible is an additional

303 304 305 306

Art. 22 (3) and (4) Law of 16 April 1979. Sect. 70 Army Act 1955. Art. 37 (1) MRPL. Art. 37 (2) MRPL.

136

Georg Nolte and Heike Krieger

purpose of the disciplinary law. In France, sanctioning failures or negligence is also part of the purpose pursued by disciplinary law. The educational purpose of disciplinary law is emphasised in Germany and Spain. d. Disciplinary Measures Most disciplinary measures find equivalents in the different military law systems,307 although they may vary in detail. In Belgium, Denmark, France, Italy, Luxembourg, Poland, and the United Kingdom, not all disciplinary sanctions can be imposed on all soldiers. Differences are made according to the soldier's rank or category. In the United Kingdom, for instance, certain punishments such as detention, reduction to ranks, and minor punishments cannot be imposed upon officers. A private cannot be reprimanded, although he can be admonished. In Belgium, special disciplinary measures for conscripts existed until conscription was abolished.308 aa. Warning!Admonition A warning or an admonition by a disciplinary superior is considered to be a disciplinary measure in Belgium, Denmark, 309 France, Italy, Luxembourg, Poland (in the form of an admonition and permissible only against officers), and Spain. In Germany, in contrast, a warning does not reach the level of legal relevance.310 bb. Reprimand All countries under review use reprimands, which are formal rebukes. A severe reprimand is used only in Germany 311 and the United Kingdom. In Germany, a

307

Rules on disciplinary measures are included in Belgium: Arts. 22-29 and 41 (1) RDF; Denmark: Art. 38 MRPL; Germany: Sect. 22 and 58 WDO; Italy: Law No. 113/1954, Law No. 599/1954, Law No. 1168/1961, Law No. 833/1961, Law No. 382/1978 and the Regolamento die disciplina militare (RDM); France: Art. 31 R D G A ; Luxembourg: Art. 19 Law of 16 April 1979; The Netherlands: Arts. 42-48 WMT; Poland: Art. 22 (1) Statute of 4 September 1997 Concerning Military Discipline; Spain: Art. 9 RDFA; United Kingdom: Sect. 71 (1) Army Act 1955. 308

Conscription was abolished in Belgium in 1993.

309

In the form of appearance before a superior or a special instruction which can be used only against officers. 310

Sect. 23 (3) WDO.

311

Sect. 22 et seq. WDO.

Comparison of European Military Law Systems

137

severe reprimand is made publicly in front of the troops.312 The severe reprimand in the United Kingdom, however, differs from the severe reprimand of the German military law system, insofar as in the United Kingdom reprimands are promulgated in notices, but are not made in front of the troops. In the United Kingdom, a private cannot be reprimanded, but he can be admonished. In France and Poland, reprimands can be imposed only on officers. French officers are subject to a disciplinary measure of blame, while the analogous punishment for privates is a withdrawal of "first class distinction". cc. Confinement to Barracks

Confinement to barracks is the prohibition leaving a certain military place without permission and/or on entering common rooms and receiving visitors. In Belgium, confinement is used only against conscripts. In the Netherlands, confinement to barracks can be imposed only for the specific disciplinary offences of absence without leave and the refusal to obey an order. It can be combined with educational measures. The permissible length of the confinement varies in the countries under review. In Belgium, confinement may last only from one to four periods of up to four hours each. This means that a confinement to barracks may last only four hours at a time. This four-hour period can be repeated up to four times for a maximum of sixteen hours. In the Netherlands, confinement may last no more than 4 consecutive days, while in Spain it may last up to eight days. In Italy, confinement to the barracks may not extend beyond seven days.313 In Denmark, confinement may not last more than 14 days. The German rule is the most extensive, with a permissible maximum confinement of three weeks. In the United Kingdom, there is a minor punishment comparable to confinement to barracks called "restriction of privileges", which may be imposed on enlisted soldiers and non-commissioned officers. dd. Fines

Only Germany, Luxembourg, the Netherlands, Poland, and the United Kingdom impose fines as disciplinary measures. In Germany 314 and the United Kingdom,315 the amount of the fine may be as high as 28 days' pay for a disciplinary offence. In Luxembourg, the fine may not exceed 1/5 of the monthly

312 313 314 3,5

Sect. 23 (2) WDO. Art. 15 (4) Law No. 382/1978. Sect. 24 WDO. If imposed by the commanding officer and not a court-martial.

138

Georg Nolte and Heike Krieger

salary. In the Netherlands, the fine must be a minimum of EUR 2,00 and must not exceed a maximum of EUR 45 per offence, with a maximum of EUR 90 per calendar month, except in the case of disciplinary offences committed during international operations outside the Kingdom, when the maximum per offence is EUR 90 and the monthly accumulated maximum EUR 270. In Poland, only officers may be fined. In contrast, the military law systems of Belgium, Italy, and Spain do not use fines as disciplinary sanctions. In these countries, it is considered contrary to the idea of military honour to impose pecuniary sanctions: soldiers are presumed to be doing their work for some motivation other than money, and thus a demand for pecuniary compensation for the offence is not seen as a meaningful punishment. ee. Arrest

All countries under review use forms of arrest as disciplinary measures. In Belgium, there are two forms of arrest: the first is the so-called "simple arrest" for conscripts, which may last from one to eight days and requires continuous presence within the unit, participation in general duties, and a prohibition on going to the canteen, to the smoking room, or to any other recreational place. The so-called "vigorous arrest" may last from one to four days (under certain conditions up to eight days), and involves isolation within a locked room. In France, arrest may last up to forty days. However, such a lengthy arrest is permissible only if the Minister of Defence has personally decided on the arrest. Detention is permissible if the wrong is particularly severe and has at the same time violated criminal law, or if the soldier constitutes a danger to his fellow soldiers.316 In Germany, arrest may last between three days and three weeks.317 In Italy, arrest implies the duty to remain in private housing or in similar military areas for up to fifteen days.318 In Poland, two forms of arrest can be distinguished: barracks arrest and isolation arrest. Barracks arrest is comparable to the confinement to barracks, while isolation arrest is a form of detention and can be imposed only by a military court. In Spain, it is possible to impose arrest either in the home of the offender or at his duty station for 1 to 30 days. In the case of serious offences the arrest may last from one month and a day up to two months which are to be served in a military disciplinary establishment. In the United Kingdom, there is a differentiation: A soldier may be sentenced

316 Decree No. 85-914 of 21 August 1985. 317 318

Sect. 26 WDO. Art. 14 (5) Law No. 382/1978.

Comparison of European Military Law Systems

139

either by his commanding officer or by a court-martial to detention in military barracks, or, if convicted by a court-martial, to detention in a civilian prison. The length of permissible arrest may vary. Detention may last up to 60 days. Detention not exceeding two years may be imposed by courts-martial for criminal offences. f f . Reduction of Pay The disciplinary method of reducing a soldier's pay seems to be possible only in Germany 319 and the United Kingdom in form of cessation of pay. Whereas in Germany this measures can be imposed only by a court, in the United Kingdom the commanding officer is entitled to use this sanction. This disciplinary measure has an equivalent in the German laws regulating the civil services, and is thus connected to the Fürsorgeprinzip and alimentation principle, which are special features of the German legal system. The idea that the delinquent violates his duties of loyalty in such a severe manner that the reciprocal duty of the State to care for the soldier is reduced is a specific consideration related to the principles of the German law regarding the civil service. In German law, specific sanctions for retired soldiers also exist in the form of a reduction or full deprivation of pension rights.320 gg. Reduction in Rank Reduction in rank is known in France,321 Germany,322 Italy, Poland, Spain, and the United Kingdom. Whereas in Germany this measure can be imposed only by a court, in France, Poland, and Spain it can be imposed by a disciplinary superior. In the United Kingdom, the commanding officer or the court-martial can impose the sanction of reduction in rank for disciplinary or criminal offences. hh. Dismissal from the Armed Forces Dismissal from the armed forces is used as a disciplinary measure in all countries under review except for Denmark. The United Kingdom also practices dis-

319

Sect. 58 et seq. WDO. Sect. 58, 64, 65 WDO. 321 There, so-called statutory sanctions are imposed according to Art. 48 SGM, see also Arts. 50 and 91 SGM. 322 Sect. 56, 62 WDO. 320

140

Georg Nolte and Heike Krieger

missal with disgrace, which can be imposed only by a court-martial. Whereas in Germany,323 only an administrative military court may impose dismissal (as a particularly severe disciplinary measure), the disciplinary superior is entitled to do so in Belgium, Poland, Spain, and the United Kingdom. In Belgium, such a measure is taken on the basis of a Royal or Ministerial Decree after an elaborate procedure. In Spain, the Ministry of Defence is the competent disciplinary superior,324 while in the United Kingdom, the commanding officer holds the power to apply this particular measure. ii. Prohibition on Promotion The prohibition on promoting a soldier is a disciplinary sanction only in France,325 Germany,326 and Spain. The court is the competent disciplinary organ in Germany, while in Spain the Ministry of Defence is entitled to impose this measure.327 jj. Temporary Suspension from Service or from Rank In Belgium, France, and Italy, a specific statutory sanction called "temporary suspension from service" (retrait temporaire d'employ) is available.328 In France, temporary suspension can last up to three years. In Belgium, these measures are imposed on the basis of a Royal or Ministerial Decree. The soldier can be permanently dismissed from the armed forces only if an advisory opinion of a special commission recommending such an action has been issued. kk. Educational and Other Penal Duties In Denmark and the Netherlands, specific educational penal duties (the exact duties depend on the rank of the offender) consist of the performance of services outside the official working hours. In the Netherlands, the maximum is three hours per ten working days. There is an accumulated maximum of no

323

Sect. 58, 63 WDO. Art. 65 Law August 1998. 325 Art. 48 SGM. 326 Sect. 58, 60 WDO. 327 Art. 65 Law 8/1998. 328 Belgium: Law of 1 March 1958, Moniteur belge, 15 March 1958; France: Art. 49 SGM; Italy: Law No. 113/1954, Law No. 599/1954, Law No. 1168/1961, Law 833/1961. 324

Comparison of European Military Law Systems

141

more than 15 days per calendar month; if this maximum is reached, the remaining extra duty hours will have to be postponed until the next month. In reports on the Eurocorps, it is sometimes stated that France still uses corporal punishment as a disciplinary measure. Article 31 R D G A lists permissible disciplinary measures, and corporal punishment is not mentioned. In Article 31 (3) R D G A it is explicitly stated that disciplinary measures other than those listed are forbidden. e. Disciplinary Law and the European Convention on Human Rights In Belgium, France, Germany, Luxembourg, the Netherlands, and Poland, the law on disciplinary measures and disciplinary procedure seems to be in accordance with the European Convention on Human Rights. In Denmark, Italy, Spain, and the United Kingdom, some provisions are considered as problematic. Problems in the area of application may still arise in all countries under review. aa. Denmark There is no academic discussion or pending case in Denmark on the conformity of disciplinary law with the ECHR. However, the fact that sanctions for criminal offences can be administered without court trial - which is the case both with "punishment without trial" and with the disciplinary measures of Article 38 M R P L - might be a violation of Article 6 ECHR. bb. France France has made a reservation with respect to Articles 5 and 6 E C H R in regard to the disciplinary regulations in the armed forces. This reservation states that Articles 5 and 6 E C H R may not be interpreted in such a manner as to prevent France from applying Article 27 LGSM and Article 375 Military Penal Code. These articles concern the application of military disciplinary law. cc. Italy In Italy, there is some academic discussion on the question of the compatibility of disciplinary sanctions "at corpus"m with Articles 5 and 6 ECHR. For in-

329

Disciplinary measures at corpus are simple disciplinary measures, such as a reprimand.

142

Georg Nolte and Heike Krieger

stance, Article 5 (3) ECHR might be violated by the provision that recourse to an administrative court for review or reversal of disciplinary sanctions can be made only after recourse through the chain of command has been exhausted. The practical effect of this provision is that a judge cannot order a release.330 Since the complaint does not suspend the execution of the sentence the sanctions will have been implemented before the judge can decide. dd. Spain Upon ratifying the ECHR, Spain made a reservation with respect to Articles 5 and 6 ECHR on the disciplinary regulations of the armed forces. Although the reservation prevents the direct application of Articles 5 and 6 ECHR, their rules are applicable in substance because Articles 14 and 24 of the Spanish Constitution correspond largely with Articles 5 and 6 ECHR. Article 10 (2) of the Constitution requires that Articles 17 and 24 of the Constitution be interpreted in the light of the jurisprudence of the European Court of Human Rights. Thus, the reservation has only minimal significance. Military disciplinary law is criticised in the Spanish academic literature because it does not set out in detail the forms of conduct which are sanctioned, with the result that the soldier cannot predict the possible consequences of his deeds without difficulty. Instead, broadly framed general clauses are predominantly used. Article 7 RDFA, for example, which defines forms of conduct sanctioned as minor offences, is seen as problematic for this reason.331 The principle of legality may be violated by the rule that the same conduct can be sanctioned as a minor offence, serious offence, with extraordinary sanctions, or as a crime. Further doubts exist with respect to the principle of ne bis in idem since conduct which has been punished as a crime under ordinary criminal law can also be sanctioned as a disciplinary offence. However, the Constitutional Court considers this practice to be constitutional since it is necessary to meet the exigencies of military reality. These restrictions are permissible only insofar as military organs apply the disciplinary norms in the light of the prevailing interpretation of fundamental rights. Concerning the rights of the accused, there are some further doubts concerning the principle of legality since according to Article 67 of Law 8/1998 sanctions are to be executed on the very same day on which the decision is com330 331

Art. 16 (2) Law No. 382/1978.

Sect. 34: "[Minor offences are those offences] that, not being regulated in the previous sections, constitute slight non-observance of some of the duties that are listed in the Royal Ordinances, regulations and other dispositions that govern the Military Institution."

Comparison of European Military Law Systems

143

municated to the accused, and it is very difficult to suspend the execution of the sanctions, especially in cases of minor offences.332 Thus, the sanction will be implemented before the complaint can be heard. ee. The United Kingdom Since 1995, the United Kingdom has lost several cases before the European Court of Human Rights with regard to its military law, and has consequently adapted its military law to the standards of the ECHR. 333 For instance, after having lost the case Findlay v. The United Kingdom334 on grounds of a violation of Article 6 (1) ECHR, the United Kingdom changed the Armed Forces Act 1996 with respect to court-martial procedures. In addition, the review of court-martial proceedings by an officer to whom all powers of the Defence Council as reviewing authority were delegated was considered problematic under the ECHR since it permitted a member of the executive to alter the decision of a court-martial. In Morris v. United Kingdom (2002) the ECHR held that the "power to give a binding decision which may not be altered by a non-judicial authority is inherent in the very nature of 'tribunal'." 335 At present, a procedure which might possibly contravene Article 6 (1) ECHR is the competence of a commanding officer on active service to summon a Field General Court-Martial. 336 To counter criticism, the United Kingdom could derogate from Article 6 ECHR under Article 15 ECHR, but the practice of the United Kingdom is not to derogate.

332

Art. 70 Law 8/1998.

333

ECHR, Lustig-Prean and Beckett v. The United Kingdom (Decision of 27 September 1999), No. 31417/96, 32377/96, (1999) 29 EHRR 548; Smith and Grady v. The United Kingdom, Judgement of 27 September 1999, Reports of Judgements and Decisions 1999 VI, p. 45, (1999) 29 EHRR 493; Coyne v. The United Kingdom, Judgement of 24 September 1997, Reports of Judgements and Decisions 1997-V, p. 1842; McGinley and Egan v. The United Kingdom, Judgement of 9 June 1998, Reports of Judgements and Decisions 1998-III, p. 1334; Hood v. The United Kingdom, Judgement of 18 February 1999, (2000) 29 EHHR 365; Stephen Jordan v. The United Kingdom, Judgement of 14 March 2000, No. 30280/96; Cable v. The United Kingdom, (2000) 29 EHRR 728; Mills v. The United Kingdom, Judgement of 5 June 2001, No. 35685/97; Wilkinson and Allen v. The United Kingdom, Judgement of 6 February 2001, Nos. 31145/96 and 35580/97. 334 ECHR, Findlay v. The United Kingdom, Judgement of 25 February 1997, Reports of Judgements and Decisions 1997-1, p. 264, (1997) 24 EHHR 221. 335

Morris v. The United Kingdom, Judgement of 26 February 2002, at para. 73; (2002) 34 EHRR 1253. 336

Sect. 103A Army Act 1955.

144

Georg Nolte and Heike Krieger

f . Disciplinary Procedure and Legal Remedies Disciplinary procedure varies among the countries under review. Nevertheless some common characteristics can be identified: (1) The first step of a disciplinary superior who has become aware of facts which suggest that a soldier has committed an offence is to start to examine the case himself or to order an investigation into the facts. In Poland and Spain, there is a special institution for investigations: In Poland the investigation is conducted by a disciplinary commissioner, while in Spain in certain cases a special investigator (instructor) is brought into action. (2) The soldier concerned must be notified of the charges laid against him, and must have the right to defend himself against the charge. There is usually an oral hearing of the soldier and an examination of witnesses. (3) The soldier must receive some form of assistance, either by another member of the armed forces (Belgium, the Netherlands, and Spain), by an accused's advisor (United Kingdom), or by a defence counsel (Belgium and Poland). In Spain, the soldier is entitled to choose a lawyer or another member of the armed forces as defence counsel in cases of severe disciplinary offences. In Denmark and Germany, disciplinary procedural law does not provide for any kind of defence counsel in cases of the exercise of disciplinary power through the disciplinary superior. However, at the very least, the elected spokesman can participate in the proceedings if the soldier is not opposed to his participation. In Italy, in cases of arrest and in proceedings for sanctions at status, the soldier has the right to appoint a defence counsel. (4) In all countries under review, there is a right to appeal or complain within the chain of command. In most of the countries, there is an additional right to appeal to an administrative or military court. In Belgium, one must distinguish between purely disciplinary sanctions {petites disciplines) and statutory disciplinary measures (grandes disciplines). Only the latter can be annulled upon request by the Conseil d'État, since they are considered to have an impact on the administrative status of the soldier concerned. Disciplinary sanctions (petites disciplines), on the other hand, are considered to be purely internal measures without any consequences on the status of the soldier. In France, judicial protection exists even against simple disciplinary sanctions. The soldier is entitled to go before an administrative court if the disciplinary measure is registered in his individual file. Germany allows an appeal to the Administrative Military Court (Truppendienstgericht) against decisions in cases of simple disciplinary measures (einfache Disziplinarmaßnahmen) and in cases of arrest.337 In

337

Sect. 42 WDO.

Comparison of European Military Law Systems

145

such cases, there is a prohibition on reformatio in peius, i.e. no measure stricter than the original one may be imposed. In addition, the soldier may file an appeal against judgements of the Administrative Military Court to the Federal Administrative Court (Bundesverwaltungsgericht).338 In the Netherlands, the soldier is entitled to file an appeal against any decision of the complaint authority, including conviction and sentence. This implies that there is a right to go to court in all cases in which disciplinary measures are imposed. In Spain, judicial appeal in cases of minor offences is difficult, but not impossible. Although the general appeal procedure against disciplinary sanctions is not open in cases of minor offences, a special procedure which is required by the Spanish Constitution for the protection of fundamental constitutional rights is available when such rights are claimed to have been violated.339 The procedure is a kind of privileged summary procedure. In the United Kingdom, the summary appeal court is competent to hear appeals from soldiers. In contrast to the situation in the other countries described above, it is explicitly stated in Article 37 (3) of the Danish MRPL that decisions on disciplinary measures cannot be brought to the courts for further control. Article 43 (2) MRPL adds that the decisions of the complaint board cannot be brought before the Minister of Defence. (5) Appeal suspends the execution of the disciplinary measure in Belgium, Luxembourg, and Germany, whereas in Denmark they are suspended only if the chief tribunal officer or the chairman of the complaint authorities so decide. aa. Belgium In Belgium, disciplinary procedure is regulated by the Royal Decree of 19 June 1980.340 The first step of a superior who has become aware of a disciplinary offence is to submit a written report to the disciplinary superior. The disciplinary superior may request an investigation into the facts. He informs the accused soldier of the offences he has been charged with in an introductory report. The soldier has a minimum of 6 hours to respond. A sanction cannot be imposed'until the soldier has been duly informed of the charge and has had the chance to defend himself. Except for exceptional written procedures, the soldier must be present when he is sanctioned. The sanction must be justified. The soldier has a right to inspect the disciplinary file. The soldier may choose another

338 339 340

Sect. 115 WDO. Art. 518 of Law 2/1989, Law on Military Procedure. The decree implements the RDF.

146

Georg Nolte and Heike Krieger

member of the armed forces as an advisor. If the case is brought before the Disciplinary Council (conseil de discipline), the soldier can ask for a legal counsel. Another member of the armed forces of higher rank than the soldier is present during the oral procedure, unless the soldier desires to be heard alone. A right of appeal against any kind of disciplinary measure is granted.341 The appeal must be filed within 2 days of the disciplinary superior's decision. The sentence is suspended while the appeal is being processed. Article 5 of the Royal Decree of 1980 designates the superior appeal authority depending on the first instance disciplinary authority. If the appeal authority wants to impose a major measure, it must first address the Disciplinary Council (conseil de discipline). This Council consists of a presiding member who is at least of the rank of captain, another member not lower than superior warrant officer, and a third member of the same rank as the offender. The secretary of the Council is a warrant officer. Since the Council only gives advice, the appeal authority need not follow the opinion of the Council, but it must explain the reasons for its decision not to do so. The advisory opinion must answer the following questions: Are the facts established? Do they constitute a disciplinary breach in the circumstances under which they took place? Do any mitigating or aggravating circumstances exist? Must they be sanctioned by a major disciplinary measure? Disciplinary measures must be implemented within the year following the offence. Otherwise, they are time-barred. This time limit is suspended by any procedural act undertaken during this year.342 bb. Denmark The procedures concerning disciplinary measures are laid down in Articles 39 to 44 MRPL, and in an Administrative Order of 1985 concerning the Use of Disciplinary Measures.343 Neither the MRPL nor the Administrative Order contain detailed provisions on the procedure. Therefore, general rules on administrative procedure apply. The case must be thoroughly investigated by the person competent to impose disciplinary measures. If there is a reasonable suspicion that a crime has been committed, the responsible superior must investigate the case.344 The soldier must be heard. At this level of disciplinary proceedings,

341

Art. 37 RDF.

342

Art. 42 RDF.

343

Administrative Order No. 64 of 22 January 1985; Kundgarelse for Forsvaret B. 5-1985, pkt. 2. 344

Art. 20 MRPL.

Comparison of European Military Law Systems

147

it is not required that the soldier has access to a defence counsel. However, in practice, the spokesman may act as a counsellor. A right to file a complaint exists under Danish law. The appeal authority depends on the competent authority to impose the disciplinary measure in the first instance. If the disciplinary measure has not been imposed by the Rettergangschef|345 the soldier can complain to the Rettergangschef.!346 The decisions of the Rettergangschef (whether in the first instance or on the basis of a complaint) can be referred to a disciplinary board. This board consists of three members: a military prosecutor, a spokesman of the same rank as the convicted soldier, and his immediate superior.347 A complaint against the decisions of the disciplinary board can be filed with a complaint board consisting of a civilian judge, the chief military prosecutor, and an independent (civilian) lawyer.348 None of these complaints suspends the execution of the disciplinary measure, unless otherwise decided by the chief tribunal officer or the chairmen of the complaint authorities.349 Articles 37 (3) and 43 (2) MRPL state that decisions on disciplinary measures are not subject to judicial review. Neither is it possible to complain to the Ministry of Defence against decisions of the complaint board. The legal protection of soldiers against disciplinary measures is, thus, considerably limited in Denmark. cc. France The main elements of the French disciplinary procedure are set out in Articles 33-39 RDGA. Every French soldier has the duty to report offences committed by his subordinates or by soldiers of lower ranks, but he is not entitled to report offences of superiors or equals in rank. The request for sanctioning is sent to the Chef de Corps of the soldier accused. The Chef de Corps must investigate the case. After hearing the soldier, he will verify the facts and determine the ground for the accusation. The Chef de Corps is competent to impose sanctions within the limits of his disciplinary powers. Otherwise, he can submit a request for punishment to a superior military authority. The soldier has a right to be heard. This right may be exercised in written form if an authority which is placed above the Chef de Corps is preparing to take the disciplinary measure.

345 344 347 348 349

Leaders of larger military units. Art. 42 MRPL. Art. 43 (1-3) MRPL. Art. 43 (2) and (4) MRPL. Art. 44 MRPL.

148

Georg Nolte and Heike Krieger

The soldier also has a right to complain (droit de recours).™ According to the case law of the Conseil d' État, soldiers are entitled to file an action to an administrative court (tribunal administratif) against disciplinary measures registered in their individual file. However, the soldier must first bring his complaint to a complaints commission (commission préalable des recours). The commission has a purely advisory function, so that the Minister of Defence has the final decision with respect to the complaint. If the Minister rejects the soldier's complaint, the soldier can go to an administrative court (tribunal administratif). The complaint must be addressed against a decision on disciplinary sanctions. The administrative court will apply the criteria for review of administrative acts (recours pour excès de pouvoir). The administrative decision will be considered as having no legal effect if there was no competence or if procedural provisions have been violated. The judge can also annul the act, if there has been a substantial error in the exercise of discretion (erreur manifeste d'appréciation). dd. Germany In Germany, simple disciplinary measures (einfache Disziplinarmaßnahmen) can be imposed by the competent disciplinary superior, while those more severe disciplinary measures which concern the status and career of a soldier can only be imposed by a court (gerichtliche Disziplinarmaßnahmen). Therefore, two different procedures apply in disciplinary proceedings: The following procedure is applicable for simple disciplinary measures:351 The opening of disciplinary proceedings is not at the discretion of the disciplinary superior. If he becomes aware of facts suggesting that a soldier has committed an offence, he must start an objective examination of the case. He may also authorize an officer to conduct the investigations. The soldier concerned must be informed about the investigations at the first moment that this is possible without endangering the aim of the investigations. If an offence has been committed, either disciplinary or general educational measures can be taken. Disciplinary measures shall be applied only when other means have been exhausted. The disciplinary measure shall be imposed only after at least one night has passed since the offence was committed. In cases of disciplinary arrest, the measure must be confirmed by a judge of the competent administrative military court. The soldier can bring a complaint against the decision of the disciplinary superior.352 The complaint usually suspends the execution of the disciplinary

350 351 352

Art. 13RDGA. Sect. 31-41 WDO. Sect. 42 WDO.

Comparison of European Military Law Systems

149

measure. The disciplinary superior of the superior who has imposed the sanction decides on the complaint. Further complaint goes to the administrative court {Truppendienstgericht). In cases of arrest, the only possibility of appeal is to the administrative court (Truppendienstgericht). If a disciplinary sanction has been imposed by the Ministry of Defence, the Military Chamber of the Federal Administrative Court (Bundesverwaltungsgericht) is the only competent appeal court. There is a prohibition of reformatio in peius. When measures are imposed by a court the following procedure applies:353 The competent office of the armed forces (Einleitungsbehörde) opens the proceedings by written order after hearing the soldier.354 The competent authority depends on the rank of the soldier accused. In cases of officers not lower than the rank of colonel the Ministry of Defence opens the proceedings. In other cases the commander of a division is competent. The soldier must be notified of the opening of proceedings against him. The Military Disciplinary Counsel ( Wehrdisziplinaranwalt) conducts the investigations. When the investigations are concluded, the proceedings are either discontinued (if the commission of an offence has not been sufficiently substantiated), or the Military Disciplinary Counsel files a formal accusation (Anschuldigung).355 The soldier is notified of the accusation. The next step is the trial.356 In contrast to ordinary criminal tribunals, the hearing is not open to the public, but the soldier may request a public trial.357 During the trial, evidence is taken. At the end of the trial, the court makes a decision consisting either of a disciplinary sanction or an acquittal. Under certain conditions, the court may also discontinue the proceedings. Both the soldier and the Military Disciplinary Council may file an appeal against the court's decision to the Military Chamber of the Federal Administrative Court (Bundesverwaltungsgericht).358 ee. Italy The Italian military law system distinguishes between disciplinary measures at corpus and at status. Those at status temporarily suspend or definitely terminate the status of the soldier. The differentiation is comparable to the French and Belgian distinction between simple disciplinary sanctions and statutory 353 354 355 356 357 358

Sect. Sect. Sect. Sect. Sect. Sect.

82 WDO. 93 WDO. 99 WDO. 104 WDO. 101 WDO. 115 WDO.

150

Georg Nolte and Heike Krieger

professional disciplinary measures. In case of disciplinary sanctions at corpus, the disciplinary procedure is regulated in Article 15 Law No. 382/1978 and in Articles 58 and 59 RDM. The proceedings consist of a report on the facts, the notification of charges to the soldier, the hearing of the soldier and further examination of the facts through witnesses, a final decision in written form,359 and the communication of the decision to the soldier. In cases of arrest or minor crimes which do not require criminal proceedings, additional procedural guarantees are provided for.360 An ad hoc consulting commission, which consists of three soldiers, two of them of higher rank and the other of the same rank as the soldier accused, is created. The president of the commission must be an officer of the highest rank in the unit. In these cases, the soldier must be defended by a Military Counsel. As in Belgium or France, the commission has only advisory functions. The commander will decide on the final disciplinary sanction. The commanders of corps start the proceedings for sanctions at status. These proceedings include more complex inquiries and an advisory decision by a disciplinary council which is composed of 5 officers. There are strict time limits for each procedural step. In the Italian military law system, it is possible to file a complaint against disciplinary sanctions within the chain of command, or to appeal to the competent administrative court. In addition, there is an extraordinary recourse to the President of the Republic, which is alternative to the possibility of seeking judicial protection. f f . Luxembourg Under the military law of Luxembourg, the competent superior or the disciplinary council {conseil de discipline) starts investigations in case of an alleged disciplinary offence. The superior informs the soldier about the accusations. The soldier must respond to the accusations within the next ten days. The proceedings and the conclusions of the superior will be forwarded to the Chef de Corps. The Chef de Corps can discontinue the proceedings if the investigation has led to the conclusion that the soldier did not violate his duties, or if the Chef de Corps is of the opinion that it would not be advisable to apply a disciplinary sanction. When the investigated fact shows that a disciplinary offence has been committed, the Chef de Corps applies the sanctions that lie within his competence. Applicable disciplinary sanctions are: warning, reprimand, arrest,

359 360

Except in cases of oral admonition. Art. 15 Law No. 382/1978 and Arts. 66-69 Regulation on Military Discipline of 1986.

Comparison of European Military Law Systems

151

and fine. Should the disciplinary offence require more severe measures than these (e.g. those concerning the status of the soldier), the Chef de Corps must forward the proceedings to the disciplinary council (conseil de discipline). The disciplinary council (conseil de discipline) consists of a judge, who is the president of the council, a high-ranking member of the ministerial administration, an officer of the armed forces, a member of the higher ranks of the police corps, and a member of the higher ranks of the Police General Inspection. There is also a right to complain against disciplinary measures. The complaint must be raised within three days after notification of the decision, and it suspends the execution of any disciplinary measure. The disciplinary superior of the superior who imposed the disciplinary sanction is competent to hear the complaint.361 gg. The Netherlands In the Netherlands, the disciplinary procedure is laid down in Articles 51-61 WMT.362 Some of the rules are modified in cases of international operations. The opening of disciplinary proceedings is at the discretion of the competent superior. First, within 21 days after the fact has occurred or has been discovered, the soldier receives a written accusation. Under certain conditions during international operations, the period may be extended to 60 days. There will be a hearing of the accused, witnesses, or experts not earlier than twenty-four hours after the soldier has received notification of the accusation against him. The proceedings are not public. The commander must render his decision at the latest on the first working day after the inquiry. Otherwise, the procedure ends ipso iure. During the proceedings, the accused may ask for the assistance of a socalled confidant, vertrouwensman, who should be a member of the military or civilian personnel of his own unit. In the Netherlands, soldiers are entitled to complain about disciplinary measures and seek judicial protection. The complaint must be brought before the commanding superior of the disciplinary superior of first instance. In principle, the same procedure as in first instance applies, with slightly different time limits. No reformatio in peius is possible. After the decision on the complaint, the soldier may appeal the decision to the three-member military chamber of the District Court at Arnhem, of which one member is a soldier.

361 362

Arts. 29-44 of the Law of 16 April 1979. Arts. 51-61 WMT.

152

Georg Nolte and Heike Krieger

hh. Poland In Poland, disciplinary procedure is regulated in the Statute of 4 September 1997 Concerning Military Discipline. A disciplinary superior starts the procedure, but its initiation can be requested by, inter alia, the wronged party. A disciplinary commissioner, who is appointed according to the Regulation of the Ministry of Defence of 19 July 1999, conducts the investigatory procedure, which ends with a report containing his conclusions to the disciplinary superior. After a hearing of the disciplinary commissioner, the soldier accused, and the counsel for the defence, the superior decides on the disciplinary sanction. A number of guarantees for the accused exist in the disciplinary procedure: presumption of innocence, the principle in dubio pro reo, as well as the right to defence, including the right to a counsel for defence. Either the soldier or the disciplinary commissioner may file a complaint. The disciplinary commissioner may also act in favour of the soldier. The complaint goes to a disciplinary superior of higher instance. ii. Spain In Spain, the disciplinary procedure is contained in Organic Law 8/1998 concerning the Disciplinary Regulations of the Armed Forces (RDFA). There are two different forms of disciplinary procedures: those for minor offences (Articles 49-50) and those for serious offences (Articles 51-63). Some special rules apply for extraordinary sanctions (Articles 64-66). The general rules on the procedure are contained in Articles 44-48 RDFA. Every soldier has a duty to notify the competent superior about a possible offence. In case of minor offences, an oral procedure is conducted with an investigation of the facts, a hearing of the accused soldier, and a final decision. In imposing the sanction, the competent superior must take the circumstances of the deed and the person of the soldier into account. The soldier must either be notified of the decision in written form, or the decision must be published in the unit. As a general rule, only the Minister of Defence, the Undersecretary of Defence, and the Chiefs of the General Staff of the Defence and the Chiefs of each service branch can initiate the procedure for serious offences. Here a written procedure is required. The investigations may last up to three months. An Instructor who is an officer - not necessarily with a legal background - is chosen. The accused has a right to legal counsel, but may elect to choose another soldier as counsel for defence instead. The Military Legal Public Prosecutor is notified of the beginning of the procedure. In order to preserve discipline, it is permissible to put the accused under arrest for a maximum of one month.

Comparison of European Military Law Systems

153

The investigation ends with a position document from the Instructor on the facts, legal qualifications, and possible sanctions. The accused soldier may react to this document and can ask that evidence also be collected on his behalf. The Instructor formulates a final proposal for the decision, including the facts, infractions, and the proposed sanction. The report is addressed to the competent disciplinary authorities, such as the Minister of Defence or the Undersecretary of Defence. These authorities will either impose the sanction or dismiss the charge. If they do not have the jurisdiction to impose the sanction due to its gravity, the proceedings will be transferred to the competent authority. If the sanction is administratively or criminally relevant, the administrative or judicial authorities or the military prosecutor will be notified of the proceedings. The Spanish military law system, like that of most countries under review, provides for legal remedies against disciplinary sanctions either within the military hierarchy or before an administrative court. Complaints within the military hierarchy are regulated in Articles 75-81 of the Law 9/1998. In case of serious offences and extraordinary sanctions, appeal to the administrative court is possible if the channel for appeal within the chain of command has been exhausted. The ordinary judicial appeals procedure is regulated in Articles 448517 Law 2/1989 on Military Procedure. jj. The United Kingdom In the United Kingdom, the disciplinary procedure is regulated in the Army Act 1955. The commanding officer of an accused soldier must investigate offences under the Army Act 1955.363 He may dismiss the charge, refer the case to higher authority (an officer higher in the chain of command than the commanding officer), deal summarily with it, or stay proceedings for the civilian police to investigate. If the commanding officer refers the charge to higher authority, that authority may, inter alia, pass the case over to the prosecuting authority. The charge may then be brought before a court-martial. The authority may also refer the case back to the commanding officer with a direction to dismiss the charge or deal with it summarily. If a soldier does not want to be tried by his commanding officer, he can choose trial by court-martial. In this case, the court-martial can impose only those sentences that the commanding officer would have been able to impose had he conducted the trial.364

363

Sect. 76 Army Act 1955.

364

Sect. 85A Army Act 1955.

154

Georg Nolte and Heike Krieger

The soldier is entitled to an 'accused's adviser' when being tried by his commanding officer. A soldier who is held in military custody may receive the assistance of a court-appointed attorney, if in the United Kingdom or abroad, or a legally qualified officer. Where a soldier has been dealt with summarily by his commanding officer, he can appeal to the Summary Appeals Court which was introduced by the Armed Forces Discipline Act 2000. The Court is composed of a judge advocate and two military officers. The Court may alter a sentence to one within the power of the commanding officer, but there is a prohibition of reformatio in peius. The prosecuting authority may choose between two types of courts-martial: the general court-martial and the district court-martial. The decisions of courts-martial can only be appealed before the courts-martial Appeal Court which is the Court of Appeal (Criminal Division) under another name.365 This court is a civilian court with no military personnel. Further appeal goes to the House of Lords on the same basis as a civilian appeal. These rights of appeal outside the military system are granted regardless of whether the finding of the court-martial concerns a purely military offence or a general criminal offence. g Representation of the Armed Forces during Disciplinary Proceedings An institution which would be directly comparable to the Military Disciplinary Counsel ( Wehrdisziplinaranwalt) in Germany does not exist in any of the other countries under review. Since none of these countries has an administrative military court with jurisdiction to impose disciplinary sanctions in the first instance, there is no need for an institution which represents the armed forces during such proceedings. However, in the United Kingdom a legal officer appears in the proceedings before a court-martial on behalf of the armed forces as a member of the Army Prosecuting Authority. Since the United Kingdom does not distinguish between military disciplinary law and military criminal law, this officer is more comparable to a prosecuting authority than to the Military Disciplinary Counsel as envisaged by the German system. In some of the countries, there are special institutions involved in the disciplinary proceedings which exercise some of the functions of the German Military Disciplinary Counsel ( Wehrdisziplinaranwalt). In Belgium, the Disciplinary Council (conseil de discipline) participates in the proceedings in case of com-

365

Courts-Martial (Appeals Act 1968).

Comparison of European Military Law Systems

155

plaints against disciplinary sanctions. The function of this council is to give an advisory opinion on the facts and on the legal qualification. In Poland, a disciplinary commissioner conducts the investigations and presents an advisory report with conclusions to the disciplinary superior. In Spain, in cases in which serious offences have been committed or extraordinary sanctions may be imposed, an Instructor must participate in the procedure. In Denmark and the Netherlands, some of the functions of the Military Disciplinary Counsel are exercised by the disciplinary superior. This is true in particular with regard to investigatory functions. Since there is no possibility of judicial appeal against disciplinary sanctions in Denmark, an institution comparable to the (German) Military Disciplinary Counsel does not seem to be necessary. In the Netherlands, the military prosecuting authority is entitled to render a recommendation during proceedings before a military court, 366 and this privilege is often used. h. Measures of Commendation In all countries under review,367 except for Denmark and Germany, a wide variety of measures of commendation exists. In Germany, there are only two forms of formal commendation: a commendation in the order of the day, and a commendation published in the official gazette of the Ministry of Defence.368 Only in Denmark are there no formal measures of commendation. The most significant difference between the countries under review is that in Belgium, France, Italy, Luxembourg, the Netherlands, Spain and the United Kingdom, medals may be awarded for soldiers as commendatory awards, while in Germany this tradition was not re-introduced after the Second World War. In Belgium, soldiers may receive a title of nobility, which may be designated as

366

Art. 91 WMT.

367

Belgium: Art. 12 et seqq. Loi du 1er mars 1958 relative au statut des officiers de carrière des forces armées, Moniteur belge, 15 March 1958, Art. 15 et seqq. Loi du 27 décembre 1961 relative au statut des sous-officiers du cadre actif des forces armées, Moniteur belge, 12 January 1962, Loi du 20 mai 1994 portant statut des militaires court terme, Moniteur belge, 21 June 1994; France: Arts. 26-29 RDGA; Germany: Sect. 11-14 WDO; Luxembourg: Art. 17 Law of 16 April 1979; the Netherlands: Art. 130 AMAR; Poland: Art. 7 (1) DW; Spain: Art. 197 OR; Law 17/1999 of 18 May 1999, Régimen del Personal de las Fuerzas Armadas, Spanish Journal of Law (Boletín Oficial del Estado) 1999, No. 119; United Kingdom: Queen's Regulations for the Army (1975) paras. 5.392, 5461, J10.002, 5.511,5.513. 368

Sect. 11 WDO. In case of a formal commendation, special leave of up to 14 days can be granted. Good performances can also be honoured through other forms of commendation; see Sect. 11 (4) WDO.

156

Georg Nolte and Heike Krieger

hereditary. In France, a variety of measures, such as decoration, citation, congratulation, diverse diplomas or insignia, nomination to the first class of the soldier's corps, and certificates can be awarded. In Italy, military rewards and military honour distinctions, such as the nomination for a specific title, the conferment of medals, promotion or transfer to higher ranks, or a commendation for bravery can be conferred.369 In Luxembourg, formal commendations consist of conferment of medals, congratulations, and granting of special leave. In the Netherlands, a soldier may obtain military honours, an extraordinary promotion, or a titular rank as a mark of distinction.370 In Poland, the following measures are used: citation, short-term leave, material reward, financial reward, the award of a valuable weapon, and accelerated promotion. 371 Apart from the variety of medals that may be awarded to soldiers in Spain, there are also the measures of citation and honorary mention. In the military law systems of Belgium and France, particular emphasis is laid on the continuous evaluations of officers and NCOs.

2. Criminal Law a. Military Criminal Legislation All countries under review have special criminal legislation for the military: either in a special code or included in the general criminal law. Some countries also have a special criminal procedure code for the military: Belgium has a special Military Criminal Code {Loi du 27 mai 1970 contenant le Code pénal militaire) and a Military Criminal Procedure Code (Loi du 15 juin 1899 comprenant le titre 1er du Code de procédure pénale militaire). In Denmark, substantive criminal law is regulated in the Military Criminal Code (Militar Straffelov, MSL),m while the procedural law is included in the Administration of Military Justice Act (Militar retsplejelov, MRPL).m In Italy, two special military criminal law codes exist which contain specific substantive and procedural norms and are applied by special military courts: the Military Criminal Code for Peace-time (Codice Penale Militare di Pace, C.P.M.P.) and the Military Criminal Code for War-time (Codice Penale Militare di Guerra, C.P.M.G.). There is no comparable distinction in any of the other countries under review.

369 370 371 372 373

Arts. 76 et seq. RDM. Art. 130 AMAR. Art. 7(1) DW. Act No. 642 of 30 September 1987. Act No. 643 of 30 September 1987.

Comparison of European Military Law Systems

157

In Luxembourg, a Military Criminal Code and a Military Criminal Procedure Code exist (Loi du 31 Décembre 1982, concernant la refonte du code pénal militaire,™ and Loi du 31 Décembre 1982, concernant la refonte du code procédure militaire375)· In the Netherlands, there is a Military Criminal Code ( Wetboek van Militair Strafrecht, WMSr), as well as an Act on Military Criminal Procedure (Wet militaire strafrechtspraak, WMS), which contains special rules with regard to the prosecution and trial of military criminal offences. In France (Code de la justice militaire), Germany (Wehrstrafgesetz WStG),316 and Spain (Código Penal Militar), special Military Criminal Codes exist. Both the French Military Criminal Code and the Spanish Military Criminal Code include substantive as well as procedural provisions, while the German Military Criminal Code regulates only substantive aspects. In Poland, special regulations for substantive and procedural aspects are included in the General Criminal Code (.Kodeks karny)377 and General Criminal Procedural Code (Kodeks postêpowania karnego).m In the United Kingdom, the Army Act 1955 includes Section 70, which incorporates the whole criminal law of England and Wales. b. Applicability to Civilians Only the Netherlands completely refrain from applying specific military criminal law to civilians. The military law systems of all other countries under review contain provisions which extend military criminal law to civilians under certain circumstances. In Belgium, specific provisions of both the Military Criminal Code and the Military Criminal Procedure Code apply to civilians employed with the military. A corresponding clause must be included in their employment contract. The applicability must be ordered by Royal Decree.379 In Denmark, military law can be applied to civilians if they participate in crimes enumerated in the Military Criminal Code, but only if the relevant provision of the Code authorises punishment of more than 4 years of imprisonment. This is the case only for the most severe crimes. Thus, civilians are nor-

374 375 376

Mémorial 1982 A-144, p. 2600. Mémorial 1982 A-144, p. 2610.

Law of 30 March 1957, BGBl. I, p. 298 (as amended). Criminal Code of 6 June 1997, Journal of Laws 1997, No. 88, item 553, as amended. 378 Criminal Procedural Code of 6 June 1997, Journal of Laws 1997, No. 89, item 555, as amended. 379 Arts. 1 et seq. of the Law of 15 June 1899 containing the Military Criminal Procedure Code. 377

158

Georg Nolte and Heike Krieger

mally not covered by the Military Criminal Code even if they participate in crimes violating it.380 In France, military criminal law can be applied to civilian employees of the armed forces. Likewise, the Military Criminal Code is applicable to persons who are on board of a ship or an aircraft of the armed forces or who are prisoners of war. Moreover, a military criminal court is competent to try an accused who has committed a crime against the armed forces or who has participated in committing such a crime.381 In Germany, the Military Criminal Code of 1957 (WStG) is applicable only to soldiers actively serving in the German armed forces and to civil servants of the Ministry of Defence acting as military superiors. If civilians participate in a military crime, they are also tried under the Military Criminal Code.382 In Italy, the Military Criminal Code for Peace-time applies as a general rule to all military personnel in service or called into obligatory service, as well as certain categories of retired military personnel and civil employees. However, for certain crimes or participation in crimes committed by military personnel, the applicability is extended to civilians.383 The Military Criminal Code for War-time applies to the same categories, but the personal, territorial, and temporal limits of jurisdiction can be extended. In the Netherlands, the Military Criminal Code applies, as a general rule, to soldiers (militairen) in active service (in werkelijke dienst), including career soldiers, reservists, and conscripts under specific conditions.384 Article 65 WMSr extends the Military Criminal Code to acts perpetrated by prisoners of war.385 Article 60a WMSr determines that foreign soldiers can be treated in the same manner as Dutch soldiers in regard to certain provisions of the Military Criminal Code which have been specifically designated by Royal Decree. So far this has not been put into effect. In Poland, Article 317 (2) of the Criminal Code states that certain provisions are also applicable to the civilian personnel of the armed forces. This includes offences against the rules of service and offences against military property.386 If laid down in a statute, other provisions of military criminal law may

380 381 382 383 384 385 386

Art. 7 MSL. Arts. 60-65 Code de la justice militaire. Sect. 1 WStG. Art. 14 C.P.M.P. Art. 62 WMSr. See Art. 84 of the 1949 Geneva Convention on Prisoners of War. Arts. 356-363 of the Criminal Code.

Comparison of European Military Law Systems

159

be applied to other persons, for instance, policemen, firemen, and border guards. In Spain, military criminal law is applicable to civilians if they have committed one of the following criminal offences according to the Código Penal Militar: violation of military enclosures and grounds (Article 61 CPM), crimes against a sentry or guard (Article 85 CPM), inciting, justifying, or concealing the act of leaving one's duty station or residence without leave, or the act of desertion (Article 129 CPM), crimes against the administration of military justice (Articles 180, 182-188 CPM), and receipt or possession of stolen military property (Article 197 CPM). In the United Kingdom, civilians may be subject to military law and may be dealt with by military criminal courts if, outside the United Kingdom, they come within the Fifth Schedule to the Army Act 1955. In addition, they must be within the limits of the command of any officer commanding a body of the regular forces outside the United Kingdom. The Fifth Schedule lists various types of occupation, such as employment by the Government of the United Kingdom and provision of services to the armed forces, persons belonging to specified organisations operating in connection with the armed forces, and those who are authorised to accompany the armed forces for the purposes of their employment, profession, or business. This may include journalists. Schedule 5 also includes certain family members of service-members who are residing with, or are about to reside, or who have departed after residing with the servicemember. c. Relation to General Criminal Law In all countries under review except for the United Kingdom, the Military Criminal Code is considered as lex specialis in relation to general criminal law. In the United Kingdom, general criminal law is incorporated into the Army Act 1955.387

387

Sect. 70 Army Act 1955.

160

Georg Nolte and Heike Krieger

d. Military Criminal Courts aa. Overview In all countries under review, military courts apply judicial procedures which are as formal as those of the civilian courts. There is always some form of preliminary investigation which serves a role comparable to that of the juge d' instruction in the French system or the prosecutor (Staatsanwaltschaft) in some of the other continental systems. Under the British system, it is the accused's commanding officer who is responsible for conducting the investigation, considering the evidence, and deciding whether the case justifies it to bring the accused before a court-martial. Under other military legal systems, the preliminary investigation is in the hands of a military prosecutor, who in an equivalent to the official responsible for initiating civil prosecutions on the public's behalf. Pending trial, all countries start from the presumption of the accused's innocence. He must be allowed to prepare for his defence, and there are safeguards provided to protect him from being held unjustifiably in arrest before trial. As provided for by Articles 5 and 6 ECHR, the arrest of the accused soldier must be ordered with the participation of a judge or an officer authorised by law to exercise judicial power. Military courts generally consist of between three and eight judges. These are usually military officers, but the court may often include members of another rank and/or civilian judges. The military courts include at least one lawyer, who may be a legally qualified serving officer or a civilian. In trials before military courts, all countries under review allow or request the accused to be assisted in his defence by legal counsel. All countries permit the use of qualified civilian legal counsel. In all systems there is a right to appeal the decision of a military court to a superior military court. In all countries there is either an immediate or an ultimate right to appeal to a civilian court. In continental countries this is a court of review, and in Britain it is a court-martial appeal court which in composed of justices of the Criminal Division of the Court of Appeal. All countries provide rules to prevent double jeopardy (punishment for one and the same act by both civil and military jurisdiction). Generally, when civilian jurisdiction can be exercised, it prevails over military jurisdiction. Most countries, including some that leave soldiers in peace-time to an exclusively civilian jurisdiction, provide for trial by military courts in times of war or emergency. bb. Individual States Only Denmark, Germany, and the Netherlands do not currently have special military criminal courts. In Denmark, military courts were abolished in 1919. In Germany, Article 96 (2) GG provides that special military criminal courts

Comparison of European Military Law Systems

161

may be established by federal legislation, but it has thus far made no use of this competence. Such courts could only have jurisdiction in war-time and for soldiers abroad or on warships. Article 56 SG therefore prohibits the establishment of special military criminal courts in peace-time for crimes by soldiers committed on German territory. As in Denmark and Germany, in the Netherlands the ordinary criminal courts have jurisdiction in cases concerning military criminal law. There, however, special chambers for military criminal law exist in which there is always one judge who is a member of the armed forces. Special military courts exist in Belgium, France, Luxembourg, Poland, Spain, and the United Kingdom. Within this category, one can distinguish standing courts and ad hoc courts. In France and Poland, the military court is a standing court, while in the United Kingdom, courts-martial are ad hoc courts. The systems in Belgium and Luxembourg provide for both types of military courts. In Belgium, Luxembourg, the Netherlands, and the United Kingdom, the special military courts may apply both general criminal law as well as military criminal law, whereas in France and Spain, the competent court may decide only on offences punishable under military criminal law. In Belgium, there are two kinds of special military criminal courts: 388 at first instance, the War Council (Conseil de Guerre), and on appeal, the Military Court (Cour Militaire). The permanent War Council must be distinguished from the War Councils at Large (en campagne) which are ad hoc courts. Today, only one War Council remains (in Brussels). There is also only one court of appeal (also in Brussels). The courts are competent to judge all persons subject to the Military Criminal Code, even for breaches of non-military law. However, members of the armed forces are subject to the jurisdiction of civilian courts in the following civilian criminal matters, provided they are committed in Belgium and not abroad: fiscal matters, hunting and fishing matters, road infractions and accidents (unless committed under an ordre de marché), and in cases with a civilian co-suspect. 389 In France, there is only one special military court, which is located in Paris {Tribunal aux armées de Paris). This court is competent to decide only over offences committed abroad by soldiers. For all other criminal matters, 37 specialised chambers have been established in the civilian courts in order to try soldiers in peace-time for offences as defined by the Military Criminal Code. In time of war, special courts may be convened ad hoc,390 In the past, only two

388

See Law of 15 June 1899 containing the Military Criminal Procedure Code.

389

Art. 23 of the Military Criminal Procedure Code.

390

Art. 1 Military Criminal Code.

162

Georg Nolte and Heike Krieger

such ad hoc courts have been established. Their purpose was to decide upon crimes which had been committed during the war in Algeria. In Italy, military criminal courts exist in peace-time and in war-time. In peace-time they have jurisdiction only for military crimes committed by members of the armed forces. Final appeal lies with the Court of Cassation (Corte di Cassazione), which is a civilian court. 391 A Court of Military Appeals exists in Rome with two branches in Verona and Naples.392 The courts of first instance, the so-called Territorial Military Courts, consist of two judges and an officer drawn by lot who is of a rank equal to the defendant. 393 In war-time, permanent courts as well as ad hoc courts exist. There are several different ordinary and extraordinary military tribunals for war-time (Tribunali Militari di Guerra d'Armata, Tribunali Militari di Corpo d'Armata, Tribunali Militari di Piazza Forte, Tribunali Militari Territoriali di Guerra).394 These tribunals are convened by the supreme commander or by the commander of the unit. There is no appeal against their decisions to the Court of Cassation (Corte di Cassazione).395 The constitutionality of the laws governing the existence of these war-time courts is, however, disputed in Italian academic literature. Therefore, the military courts for peace-time have been empowered to judge cases arising from the multinational operation Enduring Freedom. In Luxembourg, the Law on Military Criminal Procedure provides for two kinds of military criminal courts: 396 The Conseil de Guerre of first instance, and as an ad hoc court, the Conseil de Guerre en Campagne?91 The Cour d'Appel Militaire acts as a court of appeal and the Ordre Cour Militaire judges only certain crimes, such as violations of the Geneva Convention. In the Netherlands, ordinary courts are competent to deal with military and general criminal law cases against soldiers. This system was introduced in 1991. In cases against soldiers, however, a member of the armed forces sits on the bench. Due to their specific composition and the fact that they apply military criminal law, these courts are called "Military Courts". All military criminal law proceedings (of first instance as well as in appeal cases) are tried in the courts of Arnhem. Criminal cases against soldiers (militairen) in cases of minor

391

See Law No. 180/1981. Art. 3 Law No. 180/1981. 393 Art. 2 Law No. 180/1981. 394 See Arts. 251 et seq. C.P.M.G. 395 Arts. 288 et seq. C.P.M.G. 396 Loi de 31 Décembre 1982, concernant la réforme du code de procedure militaire, Mémorial, 1982, A-114, p. 2610. 397 Art. 49, Loi du 31 Septembre 1982. 392

Comparison of European Military Law Systems

163

offences are dealt with in first instance by the kantongerecht at Arnhem (cantonal court), and in all other cases by the arrondissementsrechtbank (district court) at Arnhem. Appeals against judgements of the militaire kantonrechter (judge of first instance) are filed at the Military Chamber of the District Court Arnhem. Appeals against judgements in first instance of the District Court Arnhem can be brought before the military chamber of the Gerechtshof Arnhem. Finally, the Höge Raad (which does not have a member of the armed forces on the bench) has jurisdiction over all military criminal cases in review. The territorial jurisdiction of the military courts of Arnhem is, as a general rule, unrestricted. Therefore, both the militaire kantonrechter and the Military Chamber of the District Court Arnhem can hold sessions abroad. This is done, for example, for the troops stationed in Germany. Mobile courts can also be convened in areas where a state of emergency (uitzonderingstoestand) has been declared, or for trial.398 Military criminal courts in Poland are permanent. Article 175 (l)-(2) of the Polish Constitution provides that the judiciary is composed of the constitutional court, the ordinary courts, the administrative courts, and the military courts. Only in times of war may exceptional courts be installed. Likewise, soldiers may be subject to summary proceedings in times of war. The system of military courts is laid down in the Statute on the System of Military Courts of 21 August 1997.399 According to Article 1 (l)-(2) of the Statute, the military courts have jurisdiction over members of the armed forces, as well as over civilians if this has been provided for in other statutory provisions. In addition, the Military Chamber of the Polish Supreme Court can examine requests for reprieve and resolve disputes over jurisdiction between military courts. Furthermore, the Chamber is competent to clarify legal provisions which have led to contradictory interpretation in the jurisprudence. Only an officer in active service can serve as a military judge, both in courts of first instance and of appeal. Appeals must be made to the Military Chamber of the Polish Supreme Court. In Spain, the system of military courts is regulated in several laws which deal with the jurisdiction of the courts.400 The final appeal is always made to 398

Art. 10 WMS.

399

Law on the System of Military Courts of 21 August 1997, Regulation of the Minister of Defence on the Military Disciplinary Commissioner of 19 July 1999 (Rozporzc^ dzenie Ministra Obrony Narodowej ζ dnia 19 lipca 1999 r. w sprawie wojskowych rzeczników dyscyplinarnych), Journal of Laws of 1999, No. 63, item 721. 400

Competence in regard to level of jurisdiction: Ley Orgánica 4/1987 of 5 July 1987, Competencia y organización de la jurisdicción militar, Spanish Journal of Law (Boletín Oficial del Estado) 187, No. 171; Territorial competence: Law 44/1998 of 15 December 1998, Planta y Organización Territorial de la Jurisdicción Militar, Spanish Journal of Law (Boletín Oficial del Estado) 1998, No. 300.

164

Georg Nolte and Heike Krieger

the Chamber of Military Law of the Supreme Court (Sala di lo Militar del Tribunal Supremo). In military criminal matters, this court is competent at first instance for all higher ranks, i.e. not lower than the rank of lieutenant general. Moreover, it is the appeal court for the other military courts. According to Law 6/1985, the Chamber is composed of a president and seven judges. Four of its eight members must be civilian lawyers. The four remaining judges are members of the legal department of the armed forces.401 The Chamber has jurisdiction over all matters of military law. The Central Military Court (Tribunal Militar Central) in Madrid is competent at the first instance for soldiers not lower than the rank of major and for soldiers who have received the highest military honours. In addition, it serves as an appeal court for the military courts of first instance. Finally, there are the military courts of first instance (Tribunal Militar Territorial). These courts are competent in first instance for the remaining ranks. There are five courts of first instance for the five military districts in Spain. Within these districts there are 18 magistrates for investigating activities (Juzgados Togados Militares Territorial). There are two magistrates responsible for investigating activities at the Central Military Court. They are competent for the whole of Spain (Juzgados Togados Militares Centrales). In the United Kingdom, there are general and district courts-martial. Two main criteria determine which court the prosecuting authority chooses: the seriousness of the offence and the rank of the accused. A district court-martial can only sentence an offender to a maximum of two years imprisonment, and it may not deal with an officer. A district court-martial is composed of a president (who is a military officer), two military officers (one of whom may be a warrant officer), and the judge advocate. In a general court-martial, two additional officers (two of the four officers may be warrant officers) sit on the bench. This composition differs significantly from the trial by a Crown Court in England, where a civilian would be tried by a judge and a jury of 12 individuals chosen randomly. In contrast, a soldier who is charged with theft would be tried by a district court-martial comprised of a president, a judge advocate, and two military officers. However, the powers of sentencing for this offence are the same. In general, the powers of a court-martial correspond to those in the Crown Court. The soldier can file an appeal against a court-martial's decision to the courts-martial Appeal Court, which is a purely civilian court. Further appeal can be brought before the House of Lords on the same basis as a civilian appeal.

401

Art. 24 of Law No. 6/1985.

Comparison of European Military Law Systems

165

e. Relationship between Civilian and Military Courts In those countries where special military courts exist, there are detailed provisions for the relationship between civilian and military courts: In Belgium, the jurisdiction of civilian courts may prevail under the following conditions: When cases against persons subject to military jurisdiction and persons subject to civilian jurisdiction are linked because of complicity, the civilian criminal courts may try all of the accused, even those who belong to the military.402 In such a case, however, the member of the armed forces is sentenced according to military criminal law.403 In France, the military court in Paris has jurisdiction only for offences committed abroad in peace-time. Therefore, civilian courts try all crimes committed by soldiers on French territory. Military offences or offences committed in the execution of service are treated by specialised chambers within the civilian courts.404 In Italy, jurisdiction of civilian courts prevails only if the crime according to general criminal law is more severe than the crime according to military criminal law.405 Jurisdictional conflicts can be brought before the Court of Cassation (Corte di Cassazione).406 In Luxembourg, civilian criminal courts exercise jurisdiction over persons who are normally subject to military jurisdiction, if they are accused of a criminal offence which is not regulated in the military criminal law.407 If a person who is subject to military jurisdiction is accused of a breach of military criminal law as well as of a breach of general criminal law, the case will first be brought before the court with the wider power of sentencing and then before the other court. If the same sanction can be imposed for both criminal offences, or if one of the crimes committed is desertion, the accused will first be brought before a military court. 408 In cases of participation of persons who are not subject to military jurisdiction, all accused will be brought before a civilian criminal court. 409

402 403 404 405 406 407 408 409

Art. 26 Code of Military Criminal Procedure. Art. 30 Code of Military Criminal Procedure. Arts. 697 et seqq. Code de Procédure Pénale. Art. 13 C.P.P. Arts. 28 et seqq. C.P.P. Art. 7 infineof the Law on Military Criminal Procedure. Art. 8 of the Law on Military Criminal Procedure. Art. 9 of the Law on Military Criminal Procedure.

166

Georg Nolte and Heike Krieger

In Spain, Articles 12-18 of Organic Law 4/1987 delimit the scope of military jurisdiction: in times of peace, the military courts are competent in criminal matters with regard to the following crimes and offences:410 1. Crimes included in the Military Criminal Code, 2. Crimes occurring during a state of siege/martial law, 3. If the soldier is abroad, crimes provided for in international agreements or treaties to which Spain is a party, and 4. If no international agreement exists in the cases mentioned under Number 3, soldiers are treated according to Spanish legislation. Civilian jurisdiction prevails if the soldier returns to Spain for trial. There is a special Chamber for Conflicts of Jurisdiction of the Supreme Court (Sala de Conflictos de Jurisdicción).411 In the United Kingdom, a criminal offence perpetrated on British territory must be dealt with by a civilian court if the offence concerns treason, murder, manslaughter, treason-felony, rape, genocide, an offence under Sections 51 or 52 of the International Criminal Court Act 2001, or an offence under the Biological Weapons Act 1974. In all other cases there is concurrent jurisdiction. Civilian jurisdiction will normally prevail if the offence relates to the person or property of a civilian. A soldier abroad will be subject to the military law contained in the Army Act 1955, along with the general criminal law of England and Wales. A civilian court will have concurrent jurisdiction if the soldier commits a criminal offence both against the law of the host state and against the law of England and Wales. The Status of Forces Agreement will then determine primacy (or exclusivity) of jurisdiction. With regard to double jeopardy, a soldier cannot be tried for the same offence under the military legal system, if he has already been dealt with by a civilian court. The principle of ne bis in idem also applies vice versa, because a trial by court-martial and even a summary trial by a commanding officer has the same status as a trial before a civilian court.

/

Special Rules with Regard to the Legal Procedure and the Sanction System

In Denmark, there are some characteristic provisions in military law which differ from general criminal law. Courts, for instance, may impose reprimands against soldiers as part of the criminal sanction system. These sanctions are not used in general criminal law. Other exceptions include, inter alia, wider possibilities to exclude the public from judicial hearings,412 prosecution of all

410 411 412

Art. 12 Organic Law No. 4/1987. Art. 39 Organic Law No. 6/1985. Art. 5 MRPL.

Comparison of European Military Law Systems

167

violations by the public military prosecutor (whereas some violations of the ordinary Criminal Code are prosecuted by the victim of the crime),413 appointment of military personnel as defence counsel,414 and broader competencies of the military investigation offices compared to the police in civilian criminal cases.415 In France, three major differences exist between the military and the civilian criminal procedure: an active soldier cannot be put under judicial control, since it is assumed that the military authority exercises sufficient control over the soldier to guarantee his appearance in front of the court on the day of trial, the public may be excluded from judicial hearings, and requirements of a jury in the Cour d'assises can be dispensed with if national defence secrets are at stake. Finally, there are several special sanctions available in the military criminal procedure, including discharge (destitution) and loss of rank.416 Since there are no special military criminal courts in Germany, the general criminal procedure applies to the proceedings in which the Military Criminal Code is applied. There are, however, some special provisions concerning the sanction system.417 According to Section 9 WStG, penal arrest is a sanction applicable only to an enlisted person. During the arrest, the soldier shall continue to serve and receive further education. In Italy, the Constitutional Court has declared several rules of the military criminal law system to be unconstitutional. Special rules of the military criminal procedure concern the territorial competencies of military courts, the role of the military judiciary police, and the military prosecutor. The sanction system of military criminal law differs strongly from that of general criminal law. There are numerous specific military sanctions, such as military confinement, demotion, dismissal, suspension from duty, reduction in rank, and publication of the verdict of guilty. In the Netherlands, the WMS is lex specialis to the ordinary Code of Criminal Procedure.418 While the Code of Criminal Procedure, as a general rule, applies only to the Netherlands, the WMS is also applicable to the other territories of the Kingdom of the Netherlands. This is because soldiers may be deployed in the various territories of the Kingdom. The Koninklijke Marechaussee is charged with the investigation of criminal offences committed by 413

Arts. 10 et seq. MRPL.

414

Art. 12 MRPL.

415

Arts. 14-17 MRPL.

416

Art. 385 Code Pénale Militaire.

417

Sect. 9-14a WStG.

418

Art. 1 (2) WMS.

168

Georg Nolte and Heike Krieger

soldiers.419 If the troops are abroad and if there is no other investigative authority present, commanding officers can exercise investigative powers.420 If the public prosecutor (officier van justitie) decides to prosecute a case, a preliminary investigation is conducted by the rechter-commissaris,421 who in military matters must be a member of a military chamber. If a soldier acts as rechtercommissaris, he does not have all the powers which a judge would have. The suspect can be assisted either by a barrister or by a military officer, except in review at the Höge Raad, where only qualified lawyers are permitted as counsel. The WMS makes exceptions to the general rule that the testimony of only one witness cannot be full proof. This is true in the cases of a declaration of a superior regarding the violation of his order, factual insubordination against him, or mutiny against him.422 There exists a special justification for guards and sentries: Article 31 (2) WMS shifts the burden of proof for a guard on duty who has committed an offence. There is an assumption of the lawfulness of the guard's actions, unless the opposite is made plausible. In other respects, the general Code of Criminal Procedure applies. In the United Kingdom, the main differences between civilian and military criminal procedure concern the composition of the court. In addition, there is no trial by jury in military criminal procedure and there are special regulations for the right to appeal. Finally, specific sanctions can be imposed, such as dismissal with disgrace. g. The Military Prosecutor There is a special military prosecutor in Belgium, Denmark, Italy, Poland, Spain, and the United Kingdom. In France, Germany, and the Netherlands, ordinary prosecutors also exercise their functions with regard to soldiers. This reflects the observation that there is no specific military criminal jurisdiction in these states. Concerning the relationship between military and civilian jurisdiction, it is important to note that the prosecutor is not part of the military hierarchy in Belgium, whereas in Denmark and the United Kingdom the army prosecuting authorities are part of the armed forces. Although the British army prosecuting authority is comprised of army lawyers, it is not within the chain of command. The military prosecutors in Poland and Spain are in a mixed posi-

419

Art. 6 (4) Politiewet 1993. Art. 59 WMS. 421 In contrast to the situation in Germany, crimes are prosecuted at the discretion of the prosecutor. 420

422

Art. 31 (1) WMS.

Comparison of European Military Law Systems

169

tion; although they are subordinated to the Ministry of Justice in their capacity as prosecutors, certain rules also bring them into the realm of the Ministry of Defence. In Belgium, the office of the public prosecutor is joined either with the War Council or the Military Court. In the former case the office is called auditorat militaire, in the latter it is called auditorat général. The public prosecutor's office is a specialised and separate office within the Ministère public, which is the central and supreme office of public prosecution. Both the auditorat militaire and the auditorat général are subordinated to the authority of the "'auditeur général" the head of the "auditorat général." Consequently, they are not part of the military hierarchy. The prosecutors are appointed by the King and are selected by the usual procedures for members of the judiciary. They have no jurisdiction over disciplinary offences, but they may refer a minor criminal offence to the competent disciplinary authority. It is, however, likely that a reform of the military procedural system will take place in Belgium in the near future. In Denmark, the office of the special military prosecutor exercises the same functions as a civilian prosecutor, but only for the military.423 The office is answerable to the Minister of Defence. An important difference to the civilian system, however, is that the military prosecutor can prosecute a case only after consultations with the competent Rettergangschefen. If the Rettergangschefen disagrees with the military prosecutor, the case will be referred to a higher authority. Eventually the Minister of Defence will decide.424 In Italy, an autonomous office of the Military Attorney General of the Republic (procuratore generale militare de la República) exists at the Court of Cassation (Corte di Cassazione).415 The military courts of first instance and the Court of Military Appeals each have their own military attorneys, who are subordinated to the Military Attorney General. The prosecutors are as independent as their counterparts in the civilian courts. In Luxembourg, the military prosecutors are attached to the Conseil de guerre and are called auditeur militaire like their counterparts in Belgium. They are chosen from among judicial magistrates, and they are appointed by the Grand Duke. They are subordinated to the highest prosecuting authority in Luxembourg - the procureur général d'État. At first instance, military prosecutors (auditeurs militaires) exercise the functions of a juge d'instruction, i.e. investigatory functions. In addition, they are responsible for the investigation of cases

423 424 425

Arts. 7-9 MRPL. Art. 9 MRPL. Art. 5 Law No. 180/1981.

170

Georg Nolte and Heike Krieger

before the highest military court. The procureur général d'État is authorised to appeal to this court.426 The military prosecuting authority is not part of the military hierarchy, but of the general prosecuting authorities. The competent prosecutor in the Netherlands is the officier van justitie in Arnhem. He is a civilian and owes his special role in military matters to the fact that military criminal cases are concentrated at the courts in Arnhem. Military prosecutors in Poland are not integrated into the military hierarchy, but belong to the general prosecuting authorities. The organisation of the military prosecuting authorities in Poland is regulated in the Statute on the Prosecutor's Office of 20 June 1985.427 The Supreme Prosecutor is the Minister of Justice, to whom all prosecutors, whether general or military, are subordinated. The Supreme Military Prosecutor is a deputy of the Supreme Prosecutor. The Supreme Military Prosecutor is nevertheless at the same time subordinated to the Ministry of Defence. The Ministry of Defence and the Supreme Prosecuting Authorities determine the tasks of the military prosecutor's office. In Spain, the Military Prosecutor occupies a somewhat mixed position. Although he is dependent upon the General Prosecutor of the State, members of the office are officers in the "Legal Corps" of the Armed Forces.428 They are appointed and dismissed on the order of the Minister of Defence.429 Although dependant on the General Prosecutor of the State, they are directly subordinated to the Ministry of Defence and to military interests.430 Thus, their actual allegiance is to the Ministry of Defence. As soldiers they are subject to military disciplinary law: they must obey all orders, except "when they act in the exercise of their positions".431 In the United Kingdom, a legally qualified officer of the Army Prosecuting Authority will normally conduct the prosecution. Although the Army Prosecuting Authority is comprised of army lawyers, they are separated from the chain of command, so that their independence from the military hierarchy and the Ministry of Defence is guaranteed.

426

Arts. 3 et seq. of the Law on Military Criminal Procedure. Statute on the Prosecutor's Office of 20 June 1985 (Ustawa ζ dnia 20 czerwca 1985 r. o prokuraturze), Journal of Laws of 1994, No. 19, item 70, as amended. 428 Art. 90 Law No. 4/1987. 429 Art. 101 Law No. 4/1987. 430 Arts. 91 et seq. Law No. 4/1987. 431 Art. 122 Law No. 2/1989. 427

Comparison of European Military Law Systems

171

h. Justification by Superior Orders All countries under review consider superior orders as a justification under criminal law. The pertinent provisions are all in conformity with Article 33 of the Statute of the International Criminal Court. In Belgium, Article 70 Code Pénal states that no crime or offence is committed when the questionable act was prescribed by law and ordered by an authority. This provision can also justify a crime committed by obeying the orders of a superior in the armed forces. The Court of Cassation (Cour de Cassation) has decided that the orders must have been formally correct and the use of force strictly necessary. If the subordinate is legally justified by Article 70 Code Pénal, Article 152 Code Pénal provides that the superior who ordered the commission of the offence must be punished. However, the justification by superior orders does not apply in cases of grave breaches of the 1949 Geneva Conventions and their 1977 Additional Protocols, or in cases of crimes against humanity and of genocide. Thus, the applicability of Article 70 is substantially limited. Soldiers in Denmark 432 and France 433 are only responsible for having committed a crime pursuant to an order by a superior if the order was manifestly unlawful. In Germany, Section 5 WStG states that a subordinate who commits a crime pursuant to a superior order will be responsible for his deed only if he knew that the deed was illegal or if it should have been obvious given the circumstances known to him. Section 22 WStG provides that a soldier cannot be punished for disobeying an order if the order is non-binding. The order is nonbinding if it has not been given for military purposes, if it would infringe on human dignity, or if its execution would constitute a crime. In Italy, the soldier is not responsible for the crime if due to an error of fact he believed that he was obeying a lawful order (Article 51 (3) CP). Since 1978, soldiers are obliged to examine whether an order is in conformity with the criminal codes, and to refuse to obey orders which are "obviously directed against the institutions of the State, or [orders] the execution of which would obviously constitute a crime".434 In Luxembourg, Article 70 of the General Penal Code provides that there is no offence when the crime or the delict was prescribed by law and ordered by the proper authority. This rule resembles the justification by superior orders in the Belgian military law system.

432 433 434

Art. 9 MSL. Art. 122 (4) Code Pénal. Art. 4 Law No. 382/1978.

172

Georg Nolte and Heike Krieger

In the Netherlands, rules on justification by superior orders are included in several statutory acts. First, the Military Criminal Code provides in Articles 131 and 132 WMSr that the soldier who disobeys an unlawful order cannot be punished (131 WMSr), nor can he be punished for disobeying a lawful order if he believed in good faith that it was an unlawful order (132 WMSr). According to the prevailing interpretation, there is a duty to disobey an order when its execution would constitute a criminal offence. Superior orders in relation to the laws and customs of war are regulated in Article 19 (1) of the Laws of War Act ( Wet Oorlogsstrafrecht). According to Article 10 (1) of the Laws of War Act, the defence of superior orders as contained in the General Criminal Code does not apply in regard to violations of the laws and customs of war. Despite the working of Article 10 (1) of the Laws of War Act, in practice, it is not completely impossible to use the defence of superior orders as a mitigating or exculpating circumstance as long as the orders were believed in good faith to be lawful. In Poland, Article 318 of the Criminal Code stipulates that a soldier does not commit an offence while carrying out a superior's order, save in a situation in which a soldier commits the offence intentionally. If the soldier is not aware that he commits a crime by executing the order, he is justified according to Article 318 of the Criminal Code. In Spain, Article 34 of the Royal Ordinances of the Armed Forces states that no soldier is required to obey an order to execute acts "that manifestly contravene the laws and customs of war, constitute a crime, or, in particular, contradict the Constitution. [...] In any case he or she will assume the full responsibility for his or her action or omission." In the United Kingdom, superior orders are not recognised as a defence to a charge under military or civil law. A soldier is not obliged to obey an unlawful military order. According to Section 34 Army Act 1955, only lawful orders must be obeyed. If the crime was committed in obedience to superior orders, the sentence of the offender may be mitigated, but he cannot be acquitted.435 i. Sanctions for Non-Compliance with International Humanitarian Law In Belgium, Denmark, Germany, Italy, Luxembourg, and the Netherlands, the principle of universal jurisdiction for certain war crimes and for crimes against humanity applies in criminal law. Some countries have enacted special statutory acts to deal with infringements of humanitarian law, while others define these crimes in their general criminal codes. The general provisions are also pertinent in the military context:

435

Manual of Military Law Part I, p. 157.

Comparison of European Military Law Systems

173

In Belgium, a special law gives "universal jurisdiction" to Belgian courts to try persons accused of having committed grave breaches of the 1949 Geneva Conventions and their 1977 Additional Protocols, crimes against humanity, or the crime of genocide.436 Universal jurisdiction is broadly applied: neither the nationality of the accused nor of his victims, nor the place where the crime was committed can prevent the crime from being prosecuted. The provision is particularly broad because it is not a prerequisite for jurisdiction that the accused is found and arrested in Belgium. In addition, an indictment which is based on evidence that would otherwise be time-barred, or which is directed against persons who would normally enjoy immunity from jurisdiction, such as Heads of State or diplomats is permissible. In Denmark, the principle of universal jurisdiction also applies in certain cases. According to Article 8 (5) of the Criminal Code, crimes that violate international humanitarian law can be punished irrespective of whether they were committed by Danish nationals or foreigners, if the treaties on international humanitarian law require that the parties to the treaties prosecute such crimes. In France, violations of international humanitarian law and laws of war are sanctioned by the general Criminal Code and the RDGA. The general Criminal Code includes crimes which are based on international conventions on humanitarian law. However, definitions and terms may diverge from the text of the international conventions.437 Although Article 9 (1) RDGA refers to the general rules of public international law applicable in armed conflict, the individual prohibitions are precisely defined. Since January 2001, a new Handbook on the Law of Armed Conflict (Manuel de droit des conflits armés) has been distributed within the armed forces. In Germany, an International Criminal Code ( Völkerstrafgesetzbuch) came into force in 2002.438 This law is applicable to international crimes, even if the act was committed abroad and there is no specific connection to Germany. In other words, the principle of universal jurisdiction applies. General criminal law applies as far as no rules contained in the International Criminal Code take precedence. Crimes listed in the Völkerstrafgesetzbuch cannot be time-barred. The International Criminal Code enumerates the following crimes: genocide,

436

Loi du 16 juin 1993 relative à la répression des infractions graves aux conventions internationales de Genève du 12 août 1949 et aux protocoles I et II du 8 juin 1977, additionnels à ces conventions, Moniteur belge, 5 August 1993 and Loi du 10 février 1999 relative à la répression des violations graves du droit international humanitaire, Moniteur belge, 23 March 1999. 437

For instance, Art. 211 (1) on Genocide, Art. 212 (1) on Deportation and Slavery, Art. 222 (1) on Torture, and Art. 224 (1) on Taking Hostages. 438

BGBl. 12002, p. 2254.

174

Georg Nolte and Heike Krieger

crimes against humanity, crimes against the laws of war concerning people, property, humanitarian operations and symbols, and the use of prohibited methods or means of warfare. In addition, the International Criminal Code punishes military superiors who fail to prevent a subordinate from committing such a crime. The same rule applies to civilian superiors. In addition, it is a crime if a military or civilian superior does not report the commission of a crime punishable under the International Criminal Code immediately to the competent authorities. In Italy, crimes against the laws of war are contained in the Criminal Code for War-time.439 A reciprocity clause which was part of this code was abolished in 2002.440 According to Article V Codice Penale, universal jurisdiction applies where international conventions allow for it. In Luxembourg, courts have universal jurisdiction with respect to breaches of international humanitarian law committed in the former Yugoslavia and in Rwanda. Furthermore, since 1992, the courts of Luxembourg have had jurisdiction in cases of offences committed during peace-keeping operations abroad. In the Netherlands, the Laws of War Act (Wet Oorlogsstrafrecht) includes a number of offences and rules on jurisdiction over various types of offences occurring during times of war. Some of these offences are defined in other acts, such as the acts which implement the Genocide and Torture Conventions. Severe sanctions can be imposed for violations of international humanitarian law. Article 8 of the Laws of War Act provides that "the person who is guilty of violating the laws and customs of war" shall be punished with imprisonment of a maximum time of 10, 15, 20 years or life imprisonment, or a fine of the highest category. Article 9 provides that the same sanctions can be imposed on a person who intentionally allows a subordinate to violate the laws and customs of war. These provisions stress the importance of humanitarian law, since all and not only grave ones - violations of international humanitarian law are considered to be offences. In 1997, the Supreme Court of the Netherlands (Höge Raad) decided that the principle of universal jurisdiction applies.441 In the same case, the court also determined that military courts rather than the normal criminal courts have jurisdiction to hear cases under Article 8, even if the crimes were committed by civilians. In Poland, non-compliance with international law is sanctioned by the provisions of Chapter XVI of the Criminal Code concerning crimes against peace

439

Title 4 Arts. 165-230 C.P.M.G.

440

Law No. 6/2002.

441

Supreme Court Netherlands (Höge Raad), 11 November 1997, 1998 N.J.B, p. 463.

Comparison of European Military Law Systems

175

and humanity and war crimes. The principle of universal jurisdiction is not applied in Poland. In the United Kingdom, breaches of international humanitarian law and the laws of war can be prosecuted if the provisions, being part of international treaties, have been incorporated into English law by a statute. Examples include the Genocide Act 1969, the Geneva Conventions Acts 1957, the Geneva Conventions (Amendment) Act 1995 (in respect of the "grave breach" provisions contained in Additional Protocol I 1977), Section 138 of the Criminal Justice Act 1988, the Landmines Act 1998, and the International Criminal Court Act 2001. j.

Ratification

of the Rome Statute of the International Criminal Court

All countries under review have either ratified or are about to ratify the Rome Statute of the International Criminal Court. Belgium and France made declarations upon ratification.442

VIII. Regulations Governing Guard Duties The exercise of guard duties is based on an Act of Parliament in all countries under review. Details are regulated by administrative regulations. Guard powers are either defined specifically (Germany and the Netherlands) or derive from general statutory law (Belgium, Denmark, France, Italy, Poland, and the United Kingdom). Certain issues seem to be common to all systems:

1. Powers of Guards towards Military Personnel as well as towards Civilians As a general rule, members of the armed forces on normal engagement terms are entitled to exercise guard duties in all countries under review. In addition, there are special guards in the United Kingdom with different competencies: The Military Provost Guard Service and the Ministry of Defence Police. Likewise, in Belgium the military police may exercise certain competencies of guards. Civilian guard personnel are used only in Germany and in the United Kingdom. In Spain, a proposal of the Ministry of Defence to use civilian guard personnel was abandoned after public discussion.

442

See on the internet .

176

Georg Nolte and Heike Krieger

2. Performance of Guard Duties by Soldiers of Foreign Armed Forces The question of how guard duties may be exercised in multinational units among the soldiers of various nationalities is important. Section 1 (2) of the German Law on Guard Duties includes a specific provision which enables soldiers of allied forces to exercise guard duties in Germany. According to this provision, soldiers of allied forces who are entrusted with the exercise of military guard and security duties in a specific situation are subordinated to a superior who has been designated by the German Ministry of Defence and who is responsible to the Ministry of Defence for the exercise of guard and security duties. In this case, the soldiers of allied forces are allowed to exercise all competencies granted under this law. The prevailing interpretation holds that governmental authority is exercised only in the name of Germany, which means that citizens who are subjected to any compulsory measure based on this law can be restricted in their rights only by German governmental authorities. In the Netherlands, a comparable law will soon be enacted. The law will allow soldiers of foreign forces to exercise (under certain conditions) the powers of a guard under Dutch command and in exercise of Dutch authority. The Dutch bill expands the law to members of foreign armed forces who have been designated by the Minister of Defence. For the purpose of their guard and security duties, these soldiers are under the command of a member of the Dutch armed forces or a civilian official of the Ministry of Defence. In none of the other countries under review is there a comparable rule which would allow the exercise of governmental authority by soldiers of allied forces.

3. Rules Concerning the Carrying and the Use of Arms and Other Military Equipment Three models can be distinguished with respect to the conditions defining the permissible use of force. First, there is the model in which the conditions for the use of force by a guard are specifically provided a priori by legislation (Ermächtigungsnormen). This model is followed in Germany, the Netherlands, and in Poland. In Germany, the pertinent rules are included in the Law on Guard Duties (Gesetz über die Anwendung unmittelbaren Zwanges).443 Likewise, in the

443

Law on Guard Duties (Gesetz über die Anwendung unmittelbaren Zwanges und die Ausübung besonderer Befugnisse durch Soldaten der Bundeswehr und verbündeter Streitkräfte sowie zivile Wachpersonen-UzwGBw) of 12 August 1965.

Comparison of European Military Law Systems

177

Netherlands there is a law which specifically regulates guard duties.444 In Poland, the rules for guards are included in a general law on military discipline.445 In all three States there are detailed rules specifying the conditions under which the use of weapons is permissible. This list is more or less the same in all three countries. Weapons may be used in order to prevent a crime, in cases of self-defence, if a military installation is attacked, and in cases of pursuit of a person against whom the use of weapons is permissible. Weapons may also be used in case of a direct attack on a convoy which escorts persons, money, secret documents, or other valuable objects. The second model is used by countries which follow the Roman legal tradition. In Belgium, France, Italy, Luxembourg, and Spain, rules for the use of arms by guards are contained in service regulations. These regulations do not contain rules enabling the use of force. The service regulations only include rules on when a warning must be given or a warning shot can be fired before the direct use of a weapon is permissible. In some of these states, in particular in France and Spain, some of the rules on the use of firearms have been seen as questionable with respect to the principle of proportionality. For instance, when sensitive military security areas must be guarded, it is not required that a direct attack on the life of a person be imminent for the use of firearms to be justified. In Belgium, the permissibility of the use of weapons is judged by the standards of general criminal law. In France, considerable doubts about the legality of the non-statutory provisions for guards currently exist, since these rules do not correspond with the conditions under which legal self-defence is permissible according to general criminal law. Therefore, in practice, the use of weapons is measured against the rules of general criminal law. In Italy, the enabling legislation is contained in Articles 41-43 of the Military Criminal Code for Peace-time. The provisions of general criminal law in the second group of states require that the use of force must be proportional, and that a direct attack on the life of a person be imminent, or that a crime be in progress or just completed. In Italy, the use of force is also permissible in order to overcome resistance. In Spain, courts have determined that the principle of proportionality applies and have developed further restrictions on the use of firearms. Thus, the service regulations on guard duties are interpreted in the light of the general rules on the use of force by a governmental authority. 444

Act for the Realm on the use of force by defence personnel in the exercise of guard

a n d security tasks (Rijkswet

geweldgebruik

defensie-personeel

in de uitoefening

van de

bewakings-en bevieligingstaak) Dutch Official Gazette (Staatsblad) 1999, 12. 445

Ustawa ζ dnia 21 maja 1963 r. o dyscyplinie wojskowej, Journals of Law 1992, No. 5, Item 17 in conjunction with Art. 130 DW.

178

Georg Nolte and Heike Krieger

A third model is followed by the United Kingdom and Denmark. In the British system, guards are entitled, in principle, to use force in accordance with the Criminal Law Act 1967. They may use reasonable force like any other citizen in order to prevent the perpetration of a crime according to Section 3, Criminal Law Act 1967. The Act does not distinguish between a police officer, a soldier, a soldier from a visiting force, or a civilian. Each organ or person may use the same degree of force. In addition, in the United Kingdom it is felt that it is a question of actual circumstances and not of law what degree of force is reasonable. Therefore, it is considered to be impossible to define, as a matter of law and in advance, any general standards. This is diametrically opposed to the approach taken in continental law systems. These systems define a priori standards for the use of force. The rules in Denmark are more or less comparable to those in the United Kingdom. The basic approach is to justify the use of force by general provisions on self-defence. According to Article 13 of the General Criminal Code and Article 8 MSL, the use of force is justified if it is necessary in order to ensure obedience or to maintain order. The use of force must be proportional. The degree of danger in the actual circumstances, the person against whom force will be used, and the importance of ensuring obedience or maintaining order in the concrete situation must be taken into account. The need for force must also be balanced against the character of the force in question. In all countries under review, a warning must precede the use of force if at all possible under the circumstances. Only in the United Kingdom do no clear a priori rules apply. The legal evaluation of a situation will probably not differ much in the countries under review, since they are all bound by the standards of the ECHR.446 Thus, the principles of proportionality and subsidiarity apply, mutatis mutandi, in all countries under review.

IX. Legal Reforms 1. Pertinent Legislation a. Overview The United Kingdom has not enacted specific legislation dealing with or specifically affecting multinational military units or operations since 1990. Belgium, Denmark, Luxembourg, and the Netherlands, on the other hand, have clarified 446

See McCann and Others v. The United Kingdom, Judgement of 27 September 1995, Series A No. 324, (1995) 21 EHHR 97.

Comparison of European Military Law Systems

179

the permissibility of different kinds of multinational operations. In addition, France, the Netherlands, Poland, and Spain have regulated certain aspects of multinational units and operations. b.

Legislation

In Belgium, the different types of missions of the armed forces, including multinational missions have been regulated by the 1994 Statute on the Use of Armed Forces (Law of 20 May 1994). In Denmark, the Defence Act (LFO) was revised and amended in 1993 and in 2001 in order to make the possibility of taking part in multinational operations explicit. Article 5 LFO gives authority to the Chief of Defence to delegate his powers to commanders of multinational units under UN or NATO auspices. Articles 3-6 LFO define the tasks of the Danish military more specifically. In Luxembourg, a law was enacted on 27 July 1992 "on the participation of the Grand Duchy of Luxembourg in peace-keeping operations in the framework of international organisations" (LOMP).447 This law's purpose is to create a legal, social, and financial basis for military personnel participating in peacekeeping operations in foreign states. In the Netherlands, the Constitution was changed in 2000 to include "the maintenance and promotion of the international rule of law" as one of the purposes of the armed forces.448 In addition, the obligation of the Government to inform Parliament prior to the engagement of the armed forces was included.449 Both amendments are the products of an open political discussion in the Netherlands which was sparked by the Dutch involvement in certain peaceoperations, in particular in the former Yugoslavia, and which resulted in a widespread consensus that the Constitution should be clarified and brought up to date and that the role of Parliament should be strengthened. The constitutional or legislative changes were, however, not considered to be strictly necessary for participation in multinational operations in any of these states. Besides the constitutional changes, in connection with the virtual abolition of the draft, the Netherlands have enacted legislation to the effect that draftees cannot under normal circumstances be ordered to take part in multinational operations against their will when the operation in question is not part of regular military training.450 In addition, some changes in the general legislation on 447 448 449 450

Memorial 1992, A-56, p. 1744. Article 97 of the Dutch Constitution. Article 100 (1) of the Dutch Constitution. Article 19 KwDpl.

180

Georg Nolte and Heike Krieger

military criminal and disciplinary law which took effect in 1999 have the purpose of enhancing multinational interoperability: This concerns the lengthening of the time limits within which an act can be prosecuted (some multinational operations do not include persons with investigative powers),451 the possibility to double the fines when on mission abroad (because certain other disciplinary measures are impracticable while a soldier is abroad and because of the significantly higher pay during missions abroad), 452 and extensions of the duty of soldiers to comply with service regulations and disciplinary rules concerning acts against foreign military personnel and military objects while abroad. 453 Poland has enacted two statutes, one concerning the rules of employment and stationing of Polish Armed Forces abroad (ZUPSZ), and one concerning the rules of stationing and transit of foreign armed forces in or through Poland (of 23 September 1999). Both statutes do not primarily address the issue of multinational units or operations and they must be seen in the context of the modernisation of Polish military law after 1989. Nevertheless, these statutes have also established the primary principles for the establishment and operation of multinational units or operations. In Spain, a provision has been introduced into disciplinary law which appoints the commanding officer of a unit taking part in a multinational operation to be the disciplinary superior in charge.454 This was necessary because under normal circumstances the commanding officer is not the superior in disciplinary affairs. c. Non-legislative Measures and Reform In Belgium, the Government made a political decision in 1998 to set a number of restrictive criteria which must be met before Belgian troops may join an international peace-keeping effort. 455 This decision has been approved by the Belgian Parliament. A similar mechanism exists in the Netherlands, 456 which is presently under review. These mechanisms resemble the US Presidential Directive 25 of 1994. In France, a governmental decree from July 2001 has changed the existing regulations on the competences of military authorities to exercise

451

Article 53 (3) WMT.

452

Article 43 (3) and (4) WMT.

453

Articles 18 (2) and 5 a WMT.

454

Article 39 RDFA.

455

Communiqué des presse - Conseil des ministres, 23 January 1998.

456

Toetsingskader uitzending strijdkrachten, Kamerstukken II 1994/95, 23, 591 No. 5, revised 2001/2002, 23, 591 No. 7.

Comparison of European Military Law Systems

181

disciplinary powers in "out of area operations".457 The decree confirms that disciplinary measures must always be ordered and applied by French superiors. Foreign commanders can request that disciplinary measures will be taken against a French soldier. In sum, no specific legislation with respect to multinational operations has so far been considered to be legally strictly necessary in any of the states under review, but a number of states have found it advisable to reinforce the political and constitutional legitimacy for the participation in such operations. It is noteworthy, however, that the Netherlands have recently introduced certain reforms to their Military Criminal and Disciplinary Law in light of the practical necessities of multinational operations.458

2. Probability of Future Reforms With one exception, there seem to be no plans at the moment in the states under review to enact reforming legislation. So far, the change of the German Law on Guard Duties finds no parallel in any of the other states under review. In the Netherlands, a bill is still pending in the Dutch Parliament which concerns the use of force by multinational guards. In addition, it is likely, that parliaments of different states will deal with certain aspects of the issue in connection with the ratification of certain treaties (e.g. Eurocorps Treaty in Belgium) or in connection with general reforms of military law (e.g. France, Poland). In Poland, the Defence Act of 1967 (POOP) is expected to be replaced by a new statute in the near future. In Luxembourg, a law on the recruitment of foreign volunteers with EU citizenship has been discussed. Still, so far there is no significant movement for reform in any of the states under review with respect to multinational units and operations. There are even strong reservations in some quarters. In the United Kingdom, the Chief of the Defence Staff has stated to a parliamentary committee: "I do not see us ever having a common multinational Act, for example, for the discipline of servicemen. I think that would be complicated beyond all measure .... There is no suggestion that there should be some multinational Act for all armed forces".459 457

Décret No. 2001-537 du 20 juin 2001 modifiant le décret No. 75-675 du 28 juillet 1975 portant règlement de discipline générale dans les armées, JORF du 23 juin 2001, p. 9999.

458 459

See above VII. l . d . d d .

Special Report from the Select Committee on the Armed Forces Bill 2000-2001 (2001, HC 154-11), p. 147.

182

Georg Nolte and Heike Krieger

3. Academic Discussion At the moment, there does not seem to be much academic interest in the legal issues connected with multinational units and operations in any of the states except Germany.

Chapter 3 Military Law in Belgium Pierre d'Argent1

Table of Contents I. The Historical and Political Background of the Military Law System of Belgium 1. Historical and Political Background 2. Perceived Role of the Armed Forces by the Constitution and the Public II. Basic Rules Concerning the Use of Armed Force 1. Constitutional Prohibition of Internationally Illegal Uses of Armed Force 2. Political Restrictions 3. The Mission of the Armed Forces 4. Administrative Classification of Permissible Operations a. Crisis Management Abroad b. Humanitarian Aid at Home and Abroad; Combined Operations . . with Civilian Aid Organisations; Natural Disasters or Humanitarian Catastrophes at Home c. Cooperation between the Armed Forces and Other Governmental Authorities; State of Emergency at Home d. Evacuation of the State's Nationals e. Use of the Armed Forces in Other Cases 5. Limitations on Operations Undertaken Jointly with the Armed Forces of Another Country III. Constitutional Powers 1. The Powers of the Head of State and of the Government 2. The Participation of Parliament in the Decision to Deploy Armed Forces 3. The Functions of the Minister of Defence 4. The Role of the Military Leadership 5. Parliamentary Control a. The Parliament's Powers to Control the Armed Forces b. Special Forms of Parliamentary Control over the Military c. Court of Auditors and Comparable Institutions 6. Judicial Control a. By the Administrative Court b. By Ordinary Courts and Tribunals of the Judiciary Order 1

Professor of Law, Catholic University of Louvain.

185 185 188 189 189 190 191 191 193

194 194 195 195 196 197 197 198 198 199 199 199 201 202 202 202 203

184

Pierre d'Argent

IV. The Structure of the Armed Forces 1. The Armed Forces and their Administration 2. Involvement of the Civilian Administration in the Process of Procurement of Material and Supplies V. Soldiers' Rights and Duties 1. Restrictions of Fundamental Rights of Soldiers a. General Aspects b. Political Neutrality and Activity of Soldiers c. Freedom of Association, Trade Union Representation and Right to Strike d. Conscientious Objection e. Equal Treatment f. Other Fundamental Rights and their Restrictions aa. Right to Work bb. Freedom of Residence 2. Legal Obligations of Soldiers 3. The Power of Command and the Duty to Obey 4. Social Rights of Soldiers and their Families 5. Rules Governing Working Time a. Working Time and Compensation for Overtime b. Holidays and Special Leave 6. Legal Remedies, in Particular Rights to File a Complaint a. General Right to File a Complaint b. Complaint to the Ombudsperson c. Right to Petition VI. The Relationship of the Superior to Subordinate Personnel 1. Legal Rules Concerning the Relationship between Superior and Subordinate a. The Position of the Superior b. The Duties of the Superior 2. Subordination of Soldiers to the Command of a Superior of Foreign Armed Forces 3. Service Regulations and their Legal Nature VII. Sanctions 1. Disciplinary Law a. Disciplinary Power b. Disciplinary Sanctions and Measures, their Purpose and their Compatibility with the European Convention on Human Rights c. Criminal Law and Disciplinary Law d. Disciplinary Procedure and Legal Remedies e. Representation of the Armed Forces during Disciplinary Procedures f. Measures of Commendation 2. Military Criminal Law a. General Issues b. Relation to General Criminal Law c. Military Criminal Courts d. Relationship Between Civilian and Military Courts e. Special Rules with Respect to Legal Procedure and Sanctions System f. The Military Prosecutor g. Justification by Superior Orders

204 204 205 205 205 205 206 206 206 207 207 207 207 207 208 208 211 211 211 212 212 213 213 214 214 214 214 214 215 216 216 216 216 218 219 220 221 221 221 222 222 222 223 223 223

Military Law in Belgium h. Sanctions for Non-Compliance with International Humanitarian Law i. Ratification of the Rome Statute of the International Criminal Court VIII. Regulations Governing Guard Duties 1. Sentries 2. Military Police 3. Performance of Guard Duties by Soldiers of Foreign Armed Forces . . IX. Legal Reforms with Respect to Multinational Operations and Structures . 1. Pertinent Legislation 2. Probability of Future Reforms 3. Academic Discussion X. Select Bibliography 1. Pertinent Legislation 2. Books and Articles

185

224 225 226 226 227 227 228 228 229 229 229 229 230

I. The Historical and Political Background of the Military Law System of Belgium How the role of the armed forces is set out in the Constitution and perceived by the public might be better understood in the context of the historical and political background of Belgium's military law system.

1. Historical and Political Background Belgium has been a parliamentary monarchy since 1831. This remains true even though the State has since then been radically transformed from a unitary to a federal State with a high degree of devolution of powers and competences to the Regions and Communities. There are in fact no political and historical circumstances that have influenced Belgium's military law system specifically regarding democratic accountability of the armed forces and the ensuring of a dignified role for the individual soldier. The armed forces have never played any role in the political history of the country. It is nevertheless important to note two major historical events that have deeply influenced our military law system. Since the end of World War II, there has always been a very large political consensus in Belgium that the security of the State can be achieved only through military alliances and participation in common defence and security structures. This marks a sharp turn from the original policy of neutrality observed by the Belgian State. The violation by the German Reich in 1914 of the Treaty of 1839, guaranteeing the neutrality of Belgium, was the first painful experience to prove the insufficiency of reliance on the very purely formal guarantee that neutral status can offer. The second painful experience was the

186

Pierre d'Argent

attack on Belgium by Nazi Germany in May 1940. Again, it proved that official neutrality, to which Belgium had returned after 1919, was not sufficient to guarantee an acceptable degree of security for the Kingdom. Therefore, after 1945, neutrality was definitively abandoned, and Belgium has since then always tried to be involved in some form of military alliance. For Belgium, as for other Western powers, NATO has fulfilled that role. This trend has probably followed a special path in Belgium, in the sense that the successive Belgian governments have never been reluctant to try to deepen military cooperation with close allies and neighbours. This is probably due to several factors: the relatively small size of the armed forces, the need to rely on foreign equipment in order to conduct operations far from the mainland (rescue of nationals in Congo/Zaire), and the lack of real deep-rooted national pride, patriotism, or military traditions in the armed forces, as is sometimes the case in the "old" big nations. These factors explain to some extent why there does not seem, in principle, to be any political obstacle in Belgium to deepening military cooperation in Europe. However, it has to be kept in mind that this represents a major historical change from the original neutral position that the Belgian State had envisaged for itself during the first century of its existence. The two World Wars also had a significant influence on domestic issues related to the use of force by the army. The Belgian Constitution, as will be seen later, states that the "King" commands the armed forces. According to the British model of constitutional monarchy, which greatly influenced the Congrès National when adopting the 1831 Constitution, the "King" in the Belgian Constitution means the Executive, i.e. the King, as Head of State, with the consent of his minister(s), who has (have) to undersign each and every public act of the King for the act to exist legally.2 The King, on his own as a physical subject, cannot "act" in the eyes of the Constitution. This conception of the "King," however, was for a long time not considered to apply to the command of the army. The constitutional provision relating to the command of the army was taken very literally at the beginning of the Belgian State in 1831. After all, at that time, it was quite normal for the Head of State to be, personally, a military commander. The King, on his horse, commanded his soldiers on the battlefield. This explains why the decision of King Leopold I to make the request himself for the help of the French army to repel the Dutch invading forces was not challenged. The success of the operation probably explains why the military decision of the King, which was actually of the gravest political importance and should have been taken by the "King" in the usual constitutional sense, was 2

Art. 106 of the Constitution: "Aucun acte du Roi ne peut avoir d'effet, s'il n'est contresigné par un ministre, qui, par cela seul, s'en rend responsable"; Art. 101: "Les ministres sont responsables devant la Chambre des représentants. (...)".

Military Law in Belgium

187

not criticised. The same is true regarding the behaviour of King Albert I during the First World War. Then, again, the King acted personally, and without the formal consent of the responsible minister, as the Commander-in-Chief of the army. He not only decided on military strategies, but also on the highest political decisions related to the command of the armed forces. At the beginning of the war, when King Albert decided to abandon Antwerp and commanded his troops to retreat beyond the Yser River, it was discussed for a short time whether such a personal decision was constitutional, but at the end of the day, nobody really dared to question the validity of the deeds of "le Roi chevalier"·. no doubt, again, that the heroic resistance and the final victory of the Belgian forces alongside the Allied and Associated Powers muzzled any critic who would have preferred to see the usual constitutional meaning of the "King" prevail in this field, too. This kind of tolerance ended with the Second World War. For Belgium, May 1940 was marked by a terrible military defeat. After 18 days of fierce fighting, the Belgian forces capitulated to the advancing German armies. The decision to capitulate was taken by King Leopold III alone, acting in contradiction to the position of the Belgian Government, which fled Brussels and took refuge in France before settling in London for the rest of the war. The King remained with his army and was taken as a captive to Germany. The King, following the practice of King Albert I, considered the command of the armed forces to be one of his personal constitutional prerogatives. The ministers, in sharp contrast to this point of view, considered such a military decision to be, in fact, a political decision of the highest importance, and that it could not constitutionally be taken without the consent of the cabinet and the signature of the responsible minister. At the end of the war, this difference of opinion led to the famous "Question royale," which echoed throughout Europe. This Question was fuelled by other ill-advised and unpopular decisions of the King during the war, inter alia, his meeting with Hitler when he was captive in Germany, and his re-marriage to the daughter of a rich bourgeois. This marriage was controversial because the King decided to have a church wedding first, contrary to the constitutional obligation which requires that the civil ceremony the only one with legal effect in Belgian law - take place first.3 To alleviate the ensuing tension, the King's brother, Prince Charles, was designated Regent. The Question royale divided the people of Belgium sharply, and a referendum on the return of the King showed a sharp division along linguistic lines: the majority of the Dutch-speaking Flemish people supported his return to the throne, whereas

3

Art. 21 (2) (formerly Art. 16 (2)): "Le mariage civil devra toujours précéder la bénédiction nuptiale, sauf les exceptions à établir par la loi, s'il y a lieu".

188

Pierre d'Argent

the majority of the French-speaking Walloons did not. In order to solve the problem, and to try to save the monarchy and the unity of the country, King Leopold III abdicated in 1951 in favour of King Baudouin, his son. Whatever the political significance and historical importance of the Question royale, at the root of it was a legal-constitutional question related to the command of the armed forces. That question finally received a clear answer: the command of the army is not a personal prerogative of the King. As will be shown, due probably to the heritage of the painful Question royale, another unconstitutional practice has arisen, in the opposite direction: the decisions relating to the command of the armed forces are not taken by the "King," in the constitutional sense as prescribed by the Constitution, but by the Council of Ministers alone.

2. Perceived Role of the Armed Forces by the Constitution and the Public Whatever has been said above regarding the Question royale, there is no real "perception" of the role of the armed forces in terms of democratic legitimacy and in terms of the rights and duties of soldiers, either from the point of view of the Constitution or from that of the successive governments or the public. It is true that the Question royale raised a major democratic problem, i.e. political accountability of the highest military decisions to the Parliament. Once it is accepted that the high command of the army is not a personal prerogative of the Head of State, it must be recognised that no specific democratic role is assigned by the Constitution to the armed forces, and that the public does not expect the army to have any defined role in that regard. The same is probably true as regards rights and duties of soldiers, which have become even less of an issue since conscription was abandoned in 1993.4 It is probably not unimportant to note that the decision to turn the army into a purely professional corps was very well received in the public, and that it raised little debate. After the end of the Cold War, nobody questioned the need to reduce the size of the armed forces and to cut military spending. Nobody really regretted the loss of the "école de vie" that compulsory military service had been for generations, mixing various social layers of society in battalions, and therefore allowing conscripts to weave long term friendships throughout the social body. Nobody thought scrapping conscription would constitute a danger to democracy by leaving the military on their own, without the natural civilian control that con-

4

Loi du 31 décembre 1992 modifiant les lois sur la milice coordonnées le 30 avril 1962, Moniteur belge, 8 January 1993, p. 100.

Military Law in Belgium

189

scription might have provided. This said, the end of conscription has undoubtedly severed the ties between the armed forces and the nation as a whole. In the eyes of the general public, the army is quite distant, except when it takes part in dramatic humanitarian operations. This has led to a greater difficulty in recruiting soldiers and, in reaction to that, an effort by the army to present itself in a more familiar and less distant way (e.g. some army sports facilities are open to the public, camps for youth are organised, information on careers is presented in schools, etc.). In short, Belgium follows the long French tradition of considering the army as "la Grande Muette:" the army obeys the orders of politicians, and has no political role whatsoever to play. Neither in the society, nor out of the society, the army stands a bit to the side of it, ready to serve - but that's it. The army is seen as a public service. Of course, it is a public service of a special character, but it is taken for granted that only those amendments to the general rules of public service that are necessary to meet that special character should be enacted.

II. Basic Rules Concerning the Use of Armed Force The mission of the armed forces, as well as the various kinds of military operations permissible and administratively classified under Belgian law, are subjected to the general constitutional prohibition of engaging the armed forces in situations contrary to the jus ad bellum and to some recent political restrictions. The participation of the armed forces in operations undertaken jointly with the armies of another country, although not envisaged per se by the Constitution, is not prohibited by it, provided Belgian authorities remain in charge of the "full command".

1. Constitutional Prohibition of Internationally Illegal Uses of Armed Force Various constitutional provisions relate to the armed forces. The central provision is Article 167 (1.2), which states that: "Le Roi commande les forces armées, et constate l'état de guerre ainsi que la fin des hostilités. Il en donne connaissance aux Chambres aussitôt que l'intérêt et la sûreté de l'État le permettent, en y joignant les communications convenables." This provision can be translated as follows:

Pierre d'Argent

190

"The King commands the armed forces, and recognises the existence of the state of war as well as of the cessation of hostilities. He notifies the Chambers of those events as soon as the interest and the security of the State allow, with all relevant information." This provision does not contain an explicit limitation on the missions of the armed forces. However, it may be considered to imply that, constitutionally, the armed forces may be used only in accordance with the general rules of public international law of war (jus ad bellum). Before 1993, the text of the then Article 68 of the Constitution stated that "Le Roi (...) déclare la guerre (...)" ("the King (...) declares war (...)"), instead of "Le Roi (...) constate l'état de guerre." With the 1993 revision of the Constitution and the fédéralisation of the Belgian State, the newly drafted Article 167 (1.2) was meant to express the view that the State had to act according to the general rules of public international law when engaging its armed forces abroad. The expression chosen might be judged fairly inadequate and unclear; it is however certain, from the travaux préparatoires, that it is that meaning that was intended through those words.5 The words used do not, however, confine the constitutional use of the armed forces to (collective) self-defence operations, as the unfortunate use of "état de guerre" (state of war) might suggest, but allow for any use of force which does not contradict the jus ad bellum.

2. Political Restrictions Except for this important constitutional prohibition, which incorporates in Belgium's legal order the limitations on the use of force set by public international law, there are no legal restrictions on the various kinds of permissible operations by the armed forces. This said, and although it is not a legally binding text, the political decision taken by the Government and approved by Parliament on 23 January 1998, relating to the participation of Belgian forces in peace-keeping operations, must also be taken into account.6 This decision sets criteria for the mandate of the peace-keepers which have to be met before Belgian troops may join the international peace-keeping effort. Those criteria were set after the tragic murder in 1994 of 10 Belgian paratroopers taking part in the UN-led MINUAR operation in Rwanda, and the parliamentary enquiry that

5 Regarding this point see my paper, P. d'Argent, Le Roi commande les forces armées, (1994) 1 Revue belge de droit international, p. 213 et seq. 6

Communiqué de presse - Conseil des Ministres, 23 janvier 1998.

Military Law in Belgium

191

followed.7 Among these guidelines, three elements are essential for the participation of Belgian troops in peace-keeping operations: a clear mandate for the force, a clear Status of Forces Agreement (SOFA) before deployment, and clear rules of engagement that allow the troops to defend themselves strongly and react effectively to any threat to their safety.

3. The Mission of the Armed Forces From Articles 91 - which provides for the oath taken by the King - and 167 of the Constitution - which provides for the command of the armed forces - one may consider that the primary official mission of the armed forces is to maintain the independence of the State and its territorial integrity.8 It is also interesting to note that in a general political note on the evolution of the armed forces between 2000 and 2015, the current Minister of Defence stated that the main missions of the armed forces, in order of importance, are and will be: -

-

protection of the integrity of the national territory and that of allies ("Article V missions", in NATO's terminology), taking part in crisis-related operations ("non-Article V missions"), Defence diplomacy (i.e. implementation of arms reduction treaties, re-structuring of foreign armed forces in order to facilitate the rule of law and democracy), evacuation of nationals abroad.

4. Administrative Classification of Permissible Operations The Law of 20 May 1994, on the "mise en œuvre des forces armées, à la mise en condition, ainsi qu'aux périodes et positions dans lesquelles le militaire peut se trouver"9 has been enacted in order to create a general legal framework more adequate to today's needs. The law allows for a clear determination of the position in which soldiers may be placed, in order to define precisely their administrative situation. This allows for a more appropriate application of various

7

G. Verhofstadt, P. Mahoux, Commisson parlementaire sur les événements au Rwanda. Rapport fait au nom de la Commission d'enquête par MM. Mahoux et Verhofstadt, Sénat belge, session 1997-1998, 6 décembre 1997, pp. 723-731. 8 See F. Delpérée, Le droit constitutionnel de la Belgique, (Bruxelles, 2000), p. 705. 9 Moniteur belge, 21 June 1994.

192

Pierre d'Argent

norms (salary, etc.). The travaux parlementaires are very sketchy on the purposes and objectives of the new law. They just state that the new geopolitical context has been taken into account.10 The law, which creates new administrative categories, comes within a larger legislative "package", which includes new laws on the status of the short-term military personnel, on the status of the military personnel, on the pecuniary rights of the military personnel, and on the use of the military personnel outside the armed forces.11 All those new laws have a primarily administrative purpose and do not, as such, address the principle of joint multinational operations. As will be seen, it is, however, sufficiently wide as to cover any kind of military operation. The Law of 20 May 1994, states that the members of the armed forces can be classified as being in one of two different "periods": time of war ("période de guerre") or time of peace ("période de paix"). Within each of these "periods", soldiers may be placed in different administrative "positions". A time of war is defined as existing during an international armed conflict, between a starting and ending date which are determined by a Royal Decree, deliberated within the Council of Ministers (Article 2). When they are not placed in a period of war, the members of the armed forces are in a period of peace. In such a time of peace, the members of the armed forces can either: (i) take part in an operation which is listed among the different operational modalities {"modes d'engagement opérationnels") that have been determined by the Royal Decree of 6 July 1994, which implements the Law of 20 May 1994;12 or (ii) take part, at home or abroad, in a mission of assistance to a civil population. The different operational modalities listed by the Royal Decree of 6 July 1994, are: -

-

maintenance of public order in Belgium, observation missions, i.e. operations conducted abroad where troops have to control the implementation of agreements, conventions, or agreed ceasefires, with the consent of all the parties concerned, protection missions, i.e. operations conducted abroad where troops have to protect people in order to secure their safety and free movement, passive armed engagement, i.e. operations conducted abroad where troops

10 Sénat, Documents Parlementaires, session 1993-1994, Projet No. 927/1; Chambre, Documents Parlementaires, session 1993-1994, Projet transmis No. 1389/1. 11 12

See Moniteur belge, 21 June 1994.

Arrêté royal du 6 juillet 1994 portant détermination des formes d'engagement opérationnel et des activités préparatoires en vue de la mise en oeuvre des forces armées, Moniteur belge, 20 July 1994.

Military Law in Belgium

-

193

have to keep public order or peace, guarantee the respect for agreements and conventions, and prevent conflicts, active armed engagement, i.e. operations conducted abroad where troops have to control violence or impose a cease-fire, if necessary by the use of force.

Besides the different operational modalities, the members of the armed forces may also be put in a special administrative condition, called the "mise en condition". It refers to all the preparatory activities which relate to the future operational modality decided. For various administrative purposes, each member of the armed forces can be classified through various "positions" that can exist either in time of war or in time of peace. The "on duty" ("en service") category comprises two "positions": "active duty" ("en service actif') and "non-active duty" ("en non-activité"). The third position is called "indefinitely off-duty" ("en congé illimité"). The member of the armed forces taking part in a peacekeeping or peace-enforcement mission is said to be in the "active duty" position. The member of the armed forces who is in such an "active" position can be placed in various "sub-positions" ("sous-positions"): either in training ("en formation"), in normal service ("en service normaF), in intensive service ("en service intensif'), in assistance ("en assistance"), or in operational engagement ("engagement opérationneF'). The "assistance" sub-position is for those members of the armed forces who are taking part, at home or abroad, in a mission of assistance to a civilian population. The "engagement opérationneF' sub-position describes service-members who are taking part in one of the various operational modalities ("modes d'engagement opérationnels") that have been determined by the Royal Decree of 6 July 1994 (see above). In light of the Law of 20 May 1994, on the "mise en œuvre des forces armées, à la mise en condition, ainsi qu'aux périodes et positions dans lesquelles le militaire peut se trouver", the different kinds of possible military operations can be categorised administratively as follows: a. Crisis Management Abroad This category of operations can contain various operational modalities that may take place in time of peace, as determined by the Royal Decree of 6 July 1994, implementing the Law of 20 May 1994. According to the precise nature of the operation, crisis management abroad could be qualified as being an "observation mission", a "passive armed engagement" or even an "active armed engagement". Troops engaged in such operations are said to be in the "active duty" position and in the "operational engagement" under-position.

194

Pierre d'Argent

b. Humanitarian Aid at Home and Abroad; Combined Operations with Civilian Aid Organisations; Natural Disasters or Humanitarian Catastrophes at Home These categories of operations can be classified as "missions of assistance to a civil population", as referred to in the Law of 20 May 1994. There does not seem to be any legal obstacle to collaboration between the armed forces and civilian aid organisations. Members of the armed forces taking part in such assistance missions are said to be "on active duty", and are placed in the subposition "in assistance".

c. Cooperation between the Armed Forces and Other Governmental Authorities; State of Emergency at Home The use of the armed forces within the national territory for purposes other than self-defence is normally exceptional. Resort to the armed forces would arise only when and if the normal civilian means were not sufficient. The bourgmestres (i.e. mayors) and the governors of provinces may require the intervention of the armed forces in cases of riots, and other civil strife (Article 175 of the Communal Law and Article 129 of the Provincial Law). The new Law on the Federal Police (Article 111)13 also allows for the Chief of the Federal Police to request the assistance of the armed forces in situations of urgency, if the means of the Federal Police are insufficient to keep public peace, and if the armed forces have the technical and human resources to contribute to the restoration of the public order. Hence, the use of the armed forces in internal emergency situations is possible, but as a matter of last resort. When the armed forces are so required to act, they act under the authority of the requesting authority and, therefore, may not do things that are outside the power of the requesting authority. They do not as such acquire police rights and duties, but their actions are limited by the powers that the requesting authority has. The last time the armed forces were used in an internal emergency situation other than an assistance mission to the civilian population following a natural disaster (flooding, etc.) was in the mid-1980's, at the time of the terrorist attacks of the "Cellules Communistes Combattantes" ("CCC"), a far-left extremist group. Resort to the Parachute Regiment was then decided in order to guard some official buildings. It was also discussed whether the army could be of some help to help the police during the introduction of the Euro currency and the large amount of special protected transports, by train and road, that this

13

Moniteur belge, 5 January 1999.

Military Law in Belgium

195

event implied, but it was decided that military participation was unnecessary. When they take part in such operations, members of the armed forces are said to be in the "active duty" position and in the "operational engagement" subposition. d. Evacuation of the State's Nationals In the terminology of the Royal Decree of 6 July 1994, implementing the Law of 20 May 1994, this kind of operation led in peace-time, alone or jointly with other forces, can be qualified as a "protection mission". Troops engaged in such operations are said to be on "active duty" and in the "operational engagement" sub-position. Belgium has become quite familiar with these kinds of operations, especially in its former African colonies, be it in Congo/Zaire (1960, 1964, 1978, 1990), or in Rwanda (1994). What is probably most remarkable is that neither the Royal Decree of 6 July 1994, nor the text of the Amsterdam Treaty incorporating the "Petersberg Tasks", refer to the protection of nationals abroad when they refer to protection missions (Royal Decree) or to evacuation missions (Amsterdam Treaty). The intention behind this is certainly to allow for some kind of solidarity between the EU member states, the troops of one member state being charged with the mission of protecting and evacuating not only their own nationals but also those of all the other member states. When one is aware, however, that protection of nationals abroad has usually been justified by the link of a common nationality that unites the troops engaged and the persons protected, the disappearance of this link cannot but raise questions about the conformity of such operations with public international law when the state out of which the nationals are to be rescued has not consented to the operation.14 e. Use of the Armed Forces in Other Cases The listing, by the Law of 20 May 1994, and the Royal Decree of 6 July 1994, of the different operational modalities does not seem to be exhaustive. In any case, their definition is sufficiently wide to allow for interpretation and to cover nearly any kind of military engagement, provided it does not contradict the jus ad bellum. The ratification by Belgium of the Amsterdam Treaty, incorporating

14 P. d'Argent, Le traité d'Amsterdam et les aspects militaires de la Politique Étrangère et de Sécurité Commune (PESC), in Y. Lejeune (ed.), Le traité d'Amsterdam. Espoirs et déceptions (Bruxelles, 1998), pp. 383-404.

196

Pierre d'Argent

the so-called "Petersberg Tasks", confirms that Belgian armed forces can be legally engaged in any of the operations covered by those tasks. It is clear that the "active armed engagement" in time of peace is a sufficiently large category to cover any kind of peace-enforcement mission abroad. Besides the operational modalities that may exist in time of peace, the use of the armed forces in time of war for, inter alia, the defence of the integrity of the national territory, always remains a live possibility.

5. Limitations on Operations Undertaken Jointly with the Armed Forces of Another Country The joint undertaking of one of the above-mentioned uses of the armed forces with the armed forces of another country does not raise any real constitutional problem. If the operation is a public-order operation in Belgium, the foreign troops should be authorised by Parliament to be on Belgian territory via the usual process (see infra, III. 5. a.). If the operation is any other military engagement, one has to make a distinction between what is usually called "full command" and operational command. The "full command" is the power of the highest order, of a true political nature, that can be given to the armed forces i.e. the decision to use the armed forces in particular circumstances, the decision to engage troops or to cease their participation in an operation. The full command remains at all times in the hands of the competent Belgian authorities, even in today's most integrated military structures (e.g. NATO). Should it be delegated to another authority, it would require a change to the Constitution, a fact of which the Amsterdam Treaty is well aware. On the other hand, operational command - i.e. the command on the ground - need not be exercised by Belgian authorities: those authorities may indeed agree to delegate to foreign authorities the power to command Belgian troops in a particular operation. This may raise difficult international legal questions about the responsibility of the nations concerned in case of an (ordered) illegal action, but does not raise any constitutional problem. If necessary, one may also resort to Article 34 of the Constitution 15 to justify the operational command of Belgian troops by an international authority, provided that the conditions set by that Article are met.

15 "L'exercice de pouvoirs déterminés peut être attribué par un traité ou par une loi à des institutions de droit international public."

Military Law in Belgium

197

III. Constitutional Powers 1. The Powers of the Head of State and of the Government The armed forces are within the competence of the federal authorities, be it the federal Executive or the federal Legislature. The federated entities (Communities and Regions) have no say in defence matters. Besides Article 167 (1.2), of the Constitution (see supra, II., 1.), other constitutional provisions on the role of the federal Executive regarding the armed forces are: -

-

Article 107 (1): "Le Roi confère les grades dans l'armée" ("The King bestows rank in the army"). This provision confirms the commanding role of the King in the armed forces. It is a prerogative of the Executive to promote military personnel. Article 114: "Le Roi confère les ordres militaires, en observant, à cet égard, ce que la loi prescrit" ("The King confers military orders while respecting the provisions of the law in this regard"). The provision relates to the granting of membership to military orders, i.e. fellowships of a purely honorary nature. The power of the Executive is nevertheless limited by legal provisions. The Conseil d'État has ruled in that regard that the Constitution gives the Legislature the competence to determine the conditions according to which honorary distinctions in military orders may be granted.16

All these provisions refer to the "King" in the constitutional sense explained above (I. 1.). The same constitutional meaning should also prevail regarding the "full command" of the armed forces, for which Article 167 (1.2), of the Constitution provides. As explained above, since the Question royale, it has been absolutely out of the question to consider the command of the army to be a personal prerogative of the Head of State. Perhaps one could argue that some military decisions of very secondary importance could be taken by the King alone, when he acts personally as the Supreme Commander of the Armed Forces (e.g. as supreme officer he could, without the consent of his minister, order troops on the parade ground, or take a minor disciplinary measure against a soldier). Due to his hierarchical position, however, it is fairly unlikely that his orders would not have a political importance for which the consent of the responsible minister would be necessary. All these considerations of principle are, strangely, not reflected in practice. In practice, since the Question royale and probably in reaction to it, it is indeed the Council of Ministers, by consensus and without formal royal approval, that decides on the use of the armed

16

C.E., 10 avril 1985, Pas., 1988, IV, p. 30.

198

Pierre d'Argent

forces.17 This practice is partly codified in the Law of 20 May 1994, on the "mise en oeuvre des forces armées, à la mise en condition, ainsi qu'aux périodes et positions dans lesquelles le militaire peut se trouver" (see supra, II. 4.), the draft text of which was criticised by the Conseil d'État in an advisory opinion,18 but was barely changed as a result. The contradiction between the governmental practice and the text of the Constitution does not seem to trouble either the politicians or the public. The consensual decision of the Council of Ministers, in a system of political coalition, seems likely to guarantee that the decision would never be really challenged in the Parliament. It is, however, troublesome from a legal point of view, since the engagement of Belgian troops abroad in those conditions is, strictly speaking, legally baseless, the "decision" of the government taken during the Council of Ministers' meeting being no juridical act as such.

2. The Participation of Parliament in the Decision to Deploy Armed Forces Parliament does not participate in the decision on the deployment of the armed forces. That remains an unhampered prerogative of the Executive. This said, Article 167 of the Constitution compels the King to communicate his decision to the Parliament as soon as the interest and the security of the State allow (see also below, III. 5., on parliamentary control).

3. The Functions of the Minister of Defence The Minister of Defence fulfils the usual ministerial functions, but in a specific department. General laws on ministerial functions apply with no distinction to all ministers, and no special law describes nor regulates the functions and powers of the Minister of Defence. He (she) alone should in principle bear the political responsibility of the engagement of the armed forces. Since that decision is not taken, as the Constitution prescribes it, by the "King" (i.e. the Head of State with the undersignature of the responsible minister), but by the government as a whole, the Minister of Defence cannot be held solely politically responsible. The Minister of Defence is however responsible - and solely responsible - for the day-to-day control of the armed forces, even if his actions are formally made by the "King". 17 18

See P. d'Agent, Le Roi commande les forces armées, supra n. 5, p. 216 et seq.

Avis du 8 novembre 1993, Sénat, Documents Parlementaires, session 1993-94, No. 927-1, p. 21.

Military Law in Belgium

199

4. The Role of the Military Leadership The military leadership does not have, either constitutionally or legally, a specific role. The military leadership is hierarchically subordinated to the King, who is the Commander-in-Chief of the armed forces, and who acts according to the constitutional meaning of the term "King" with the above-mentioned peculiarities.

5. Parliamentary Control a. The Parliament's Powers to Control the Armed Forces Articles 182, 183, 185, and 186 of the Constitution, forming its Title VI entitled "De la force publique,"19 are relevant regarding parliamentary control of the armed forces. Article 182 states that it is for the Legislature to determine the method according to which the members of the armed forces are recruited, as well as their promotion, their rights, and their duties: "Le mode de recrutement de l'armée est déterminé par la loi. Elle règle également l'avancement, les droits et les obligations des militaires." Article 183 states that the military contingent (i.e. the precise number of the members of the armed forces) is determined annually by the Parliament, and that the law which determines the contingent has a binding validity for one year only, unless it is renewed: "Le contingent de l'armée est voté annuellement. La loi qui le fixe, n'a de force que pour un an, si elle n'est pas renouvelée. " In 2002, the

19

Article 184 does not relate to the armed forces but to the police. At one time it related to the gendarmerie ("L'organisation et les attributions de la gendarmerie font l'objet d'une loi"). The gendarmerie has now disappeared and has recently been replaced by the Police fédérale, which brings together units of the former gendarmerie and of the former police judiciaire. The security forces are now organised on two levels: the federal police and the municipal police. The municipal police is composed of former gendarmes and former policiers communaux, is organised at the level of the communes, and is commanded by the bourgmestre (mayor); the federal police is under the authority of the Minister of Interior. The current Article 184, which gives the legislator an important role in defining the organisation, tasks, and status of the members of the police, reads as follows: "L'organisation et les attributions du service de police intégré, structuré à deux niveaux, sont réglées par la loi. Les éléments essentiels du statut des membres du personnel du service de police intégré, structuré à deux niveaux, sont réglés par la loi. Disposition transitoire: Le Roi peut toutefois fixer et exécuter les éléments essentiels du statut des membres du personnel du service de police intégré, structuré à deux niveaux, pour autant que cet arrêté soit confirmé, quant à ces éléments, par la loi avant le 30 avril 2002. "

200

Pierre d'Argent

contingent was of a maximum of 44,584 military personnel.20 This provision is quite remarkable and means that the Parliament can reduce the armed forces to nothing if it should wish to do so. One has to note that the law on the contingent (i.e. the size of the armed forces) is voted by the House of Representatives alone, and need not be also adopted by the Senate, in derogation to the general principle of bicameralism (see Articles 36 and 74 (4) of the Constitution). Article 185 states that no foreign troops may serve the State, or be stationed in or cross the territory of the State, except through a law: "Aucune troupe étrangère ne peut être admise au service de l'État, occuper ou traverser le territoire qu'en vertu d'une Ιοί" (see supra on the invitation made to the French army by King Leopold I). Article 186 states that members of the armed forces may be deprived of their rank, honours and pensions, only according to the law: "Les militaires ne peuvent être privés de leurs grades, honneurs et pensions que de la manière déterminée par la loi. " Those provisions create a balance between the roles of the Executive and the Legislature in the field of the armed forces. One might say that it is for the Legislature to organise the armed forces generally, and for the Executive to command them specifically. This must be understood in accordance with Article 105 of the Constitution, which states that the King (i.e. the Executive) has no other powers but the ones that are formally attributed to it by the Constitution or the laws enacted in accordance with the Constitution. This means that the Legislature has the constitutional power to pass laws on any aspect of social life that does not explicitly fall within the jurisdiction of the Executive, to which a general power of execution of the laws is attributed (Articles 37 and 108 of the Constitution). In other words, there is an implicit general residual competence for the Legislature. Hence, the Legislature may certainly not command the armed forces, i.e. decide to engage them in an armed operation or order their members to certain actions, since the command of the armed forces is explicitly attributed to the King (Article 167 of the Constitution). But, as mentioned above, the Legislature determines the size of the armed forces, as well as the way soldiers are recruited, paid, sanctioned, etc. These constitutional prerogatives of the Legislature regarding the armed forces mean that one cannot consider the armed forces as part as the general administration of the State, the organisation of which is the responsibility of the Executive (Article 107 of the Constitution). The armed forces are rather a special administration, i.e. a part of the Executive which is partly placed under the jurisdiction 20 Loi du 17 décembre 2001 fixant le contingent de l'armée pour l'année 2002, Moniteur belge, 4 January 2002. That number excludes the members of the armed forces detached from it in accordance with the Laws of 25 May 2000 and 20 May 1994.

Military Law in Belgium

201

of the Legislature. The precise role the Legislature may play in determining the very structure of the armed forces is, however, less clear. What is nevertheless certain is that the Constitution itself provides for the army to be divided into several armed forces. Before 1993, the former Article 68 stated that "le Roi commande les forces de terre et de mer". Such a precise reference to two different armed forces is no longer made in Article 167. It is, however, clear from the travaux préparatoires that the Belgian armed forces, in the eyes of the Constitution, are made up of three different forces: the army, the navy and the air force. One may therefore say that all general organisational issues which are not the natural follow-up of the commanding power of the Executive should normally fall under the jurisdiction of the Legislature, if they are not already encompassed within its explicit organisational competences (contingent, recruitment, etc.). In an advisory opinion on a draft law relating to the suppression of the fleet of the air force (which was never enacted),21 the Conseil d'État, section législation, considered that the commanding power conferred by Article 167 (then 68) of the Constitution upon the Executive did not prevent the Legislature from enacting general binding guidelines relating to the equipment and material that may be purchased by the Executive for the armed forces, and hence the nature of the missions those forces could undertake, and their structure. It stated, however, that the law would run contrary to the commanding power of the King, and therefore be unconstitutional, if it were to deprive the army of any military equipment.22 Besides these specific competences of Parliament, it exercises general control over the armed forces through the democratic process and through its budgetary competences. b. Special Forms of Parliamentary Control over the Military In both the House and the Senate, two parliamentary commissions are more specifically concerned with the control of the armed forces: the Foreign Affairs Commission and the Defence Commission. These commissions do the normal parliamentary preparatory and control work in their own fields of activity. After the tragic events of 1994 in Rwanda, before and during which Parliament had been kept on the sidelines by the government and barely informed, 21

Article 1 of the draft law would have prohibited the State's purchase of any combat aircraft. 22

Avis du Conseil d'État relatif à une "proposition de loi tendant à supprimer la flotte aérienne de la force aérienne", 25 janvier 1983, Chambre, Documents Parlementaires, session 1982-1983, No. 427/2, p. 1.

202

Pierre d'Argent

the Parliamentary Commission of Enquiry that followed decided that a special working group should be formed within the Senatorial Foreign Affairs Commission each time Belgian troops are engaged abroad. The working group should follow events closely and report to Parliament.23 This suggestion has been implemented and a standing Under-Commission created within the Senatorial Foreign Affairs Commission. Regarding the issue of ombudsperson service and its relation to the Parliament, see below at V. 6. b. c. Court of Auditors and Comparable Institutions The Court of Auditors reviews the armed forces as it does any other sector involving public spending.

6. Judicial Control One must distinguish between different possible forms of judicial review of a decision to send the armed forces into action. The control may indeed be exercised by the Conseil d'État, i.e. the administrative court, or by the ordinary courts and tribunals of the judiciary. a. By the Administrative Court The Conseil d'État (section législation) must normally give an advisory opinion on the legality of any draft law or executive decree (i.e. Arrêté royal), except in case of duly motivated urgency. It seems that this preventive control by the Conseil d'État has little chance of ever being effective in relation to a decision to engage troops in a military operation. The reasons are twofold: first, this kind of decision is generally taken urgently; second, the fact that the decision to send troops is in practice taken by the Council of Ministers, and not by the King as required by the Constitution (see above III. 1.), makes it difficult for any administrative act to be reviewed. As mentioned already, a decision of the Council of Ministers is not a formal administrative act and as such does not, strictly speaking, have any legal existence. This last reason also explains why it would be fairly difficult to have a decision to send the armed forces into action annulled by the Conseil d'État {section 23

G. Verhofstadt, P. Mahoux, Commisson parlementaire sur les événements au Rwanda. Rapport fait au nom de la Commission d'enquête par MM. Mahoux et Verhofstadt, Sénat belge, session 1997-1998, 6 décembre 1997, pp. 723-731.

Military Law in Belgium

203

administration). Even if the Conseil d'État agreed to consider such a decision of the Council of Ministers as an administrative/regulatory act, it is rather uncertain whether or not it would characterise it as an "acte de gouvernement". The theory of the "acte de gouvernement" is not really developed in Belgian administrative law. Only on two occasions has the Conseil d'État referred to such a notion. The first case related to the relations between the Executive and the Legislature of the Flemish Community; 24 the second case, in which the Conseil d'État expressed itself more clearly, concerned the decision of the Minister of Foreign Affairs to declare a foreign diplomat persona non grata.2S To avoid discussing the difficult constitutional question on the command of the armed forces by the government, the high administrative court might possibly prefer to use the notion of "acte de gouvernement". So far, the Conseil d'État has reviewed only one case related to the review of the legality of the decision to send armed forces into action. In that instance, it did not have to refer to the concept of "acte de gouvernement" since it considered the action introduced by a Flemish NGO ("Forum voor Vredesaktie") seeking the suspension of the decision on the participation of the Belgian air force in a NATO mission in Kosovo to be admissible but unfounded for lack of grave personal prejudice.26 This said, if the theory of "acte de gouvernement" does not prevail, there does not seem to be any limitation to the possibility of reviewing the legality of the decision to use the armed forces by checking its compatibility with the ius ad bellum. b. By Ordinary Courts and Tribunals of the Judiciary Order The courts and tribunals of the judiciary must refuse to apply or give effect to any act of the Executive which is incompatible with the Constitution or the laws (Article 159 of the Constitution). As the violation of public international law, even of rules without any direct effect, is considered as a "faute" for the purpose of the application of the general tort rule of Article 1382 of the Civil Code, which also applies to the responsibility of the State,27 it could, in principle, be possible to bring on that basis a reparation claim against the State, in a case where the use of force has caused a damage to the claimant. As a result,

24

C.E., No. 22.690, 26 novembre 1982, Schlitz, Tijdschrift voor Belgish Publiekrecht, 1983, p. 390. 25 C.E., No. 73.027, 9 avril 1998, Jurisprudence de Liège, Möns et Bruxelles, 1998, p. 1549. 26 C.E., No. 76.473, 16 octobre 1998, Forum voor Vredesaktie c. Etat belge, Ministère des Affaires étrangères (unpublished). 27 Cass., 13 mai 1982, (1982) Journal des Tribunaux, p. 772.

204

Pierre d'Argent

the widow of a soldier killed in action could theoretically claim full reparation if it were established that her husband was sent into battle in violation of the jus ad bellum.21 Such a violation could also be considered as a violation of Article 167 of the Constitution, since one can consider that the drafting of this Article implicitly incorporates the rules of general international law relating to the use of force (see above II. 1.). It remains, however, to be seen whether the courts and tribunals of the judiciary would be ready to use the concept of "acte de gouvernement" in order to refuse to examine the legality of a decision to use the armed forces, and so avoid discussing tricky legal (and political) questions.

IV. The Structure of the Armed Forces 1. The Armed Forces and their Administration For a long time, a general civil administration service existed in the Ministry of Defence, which was separate from the military structure proper. The personnel of this administration were subject to the general rules of civil servants of the Federal State, with the exception of specific rules regarding their appointment and promotion. 29 These personnel were under the direction of the Secretary General of the Ministry of Defence, himself being placed under the authority of the Minister of Defence. This structure has undergone a major change since January 2002. The "Administration générale civile" has been integrated into the military structure, and is no longer separate from it. The military structure itself has also changed dramatically: the three different general staffs ("états-majors") that existed in the different armed forces (army, air force, and navy) have disappeared, as well as the former superior General Staff ("état-major généraF') which had been coordinating the three subordinate staffs ("états-majors"). Only one joint General Staff now exists for all the armed forces, the Chief of Staff being placed directly under the authority of the Minister of Defence. The Chief of Staff now also has authority over those personnel of the former civil administration placed under the direction of a director (former Secretary General of the Ministry of Defence).

28

Such an action has little chance of being pursued since reparation pensions to widows or to injured soldiers can not be combined with normal civil reparation claims, and since the administration requires the victim to sign a declaration forfeiting the right to bring any lawsuit against the State before a court prior to granting the pension. 29

Arrêté ministériel du 12 novembre 1997 fixant le règlement du personnel civil du Ministère de la défense nationale, Moniteur belge, 28 November 1997.

Military Law in Belgium

205

2. Involvement of the Civilian Administration in the Process of Procurement of Material and Supplies The civilian administration, and not only that of the Ministry of Defence, but also that of the Ministry of Economic Affairs, is, of course, involved in the process of purchase and procurement of material and supplies for the armed forces. In conformity with Article 296(1.b) (formerly 223(1.b)) of the EC Treaty, the general rules on public procurements contained in the Law of 24 December 1993,30 are largely derogated from in matters of the purchase of weapons, ammunition, and war material. The Royal Decree of 6 February 1997,31 sets out a procedure in which the Council of Ministers, and not only the Minister of Defence and the Minister of Economic Affairs, has a decisive role. When the procurement relates to a cooperation, of whatever nature, in which the majority of the EU or NATO member states take part, the Law of 24 December 1993, does not apply, except Article 6 stating that each Minister is competent in his/her field of activities to sign procurement contracts.32

V. Soldiers' Rights and Duties 1. Restrictions of Fundamental Rights of Soldiers a. General Aspects According to Article 14 of the Law of 14 January 1975, containing the Disciplinary Regulation of the Armed Forces (RDF), 33 members of the armed forces enjoy all the same rights as Belgian citizens. Only the way some of those rights may be exercised is regulated or restricted by that same law, i.e. by a parliamentary act.

30

Loi du 24 décembre 1993 relative aux marchés publics et à certains marchés de travaux, de fournitures et de services, Moniteur belge, 22 January 1994. 31

Arrêté royal du 6 février 1997 relatif aux mâchés publics de fournitures et de services auxquels s'applique l'Article 3, § 3, de la loi du 24 décembre 1993 relative aux marchés publics et à certains marchés de travaux, de fournitures et de services, Moniteur belge, 25 February 1997. 32

Loi du 24 décembre 1993 relative aux marchés publics et à certains marchés de travaux, de fournitures et de services, Moniteur belge, 22 January 1994, Article 3, paragraphe 4, as modified by the Loi-programme du 19 juillet 2001 pour l'année budgétaire 2001, Moniteur belge, 28 July 2001, Article 49. 33 Loi du 14 janvier 1975 portant règlement de discipline des Forces armées, Moniteur belge, 1 February 1975.

206

Pierre d'Argent

b. Political Neutrality

and Activity

of

Soldiers

Members of the armed forces may not engage in any political activity within the sphere of the armed forces themselves. They may nevertheless join any political party they choose, and exercise the rights attached to their membership. However, the only functions that they are allowed to exercise within the political party are those of expert, council, or member of a research centre. Any other active or public participation in political life is prohibited, even outside of duty hours. Those rules do not apply to conscripts (conscription still existed at the time of the law), if the needs of the service are compatible with their political activities, and if these are carried on outside of duty hours. Whenever engaging in political activity, members of the armed forces must at all times abstain from wearing their uniform and from giving publicity to their military status (Article 15 RDF). c. Freedom of Association, and Right to Strike

Trade Union

Representation

It is forbidden within the armed forces to go on strike, whatever form it might have (Article 16 RDF). However, according to Article 1 (2) of the law organising the relations between the public authority and the trade unions of the personnel of the army, air force, navy, and medical service,34 members of the armed forces may join either a professional military trade union, or a trade union affiliated to a union represented at the National Work Council. The prohibition on striking is to some extent balanced by legal provisions which render it compulsory in a large number of cases for the public authority to consult and negotiate with the military trade unions. Very detailed regulations exist on the control and approval of the trade unions considered as representative, as well as on the different consultation procedures.35

d. Conscientious

Objection

The right to conscientious objection was recognised by the law at the time of conscription. Since conscription has been abolished, the problem of conscient-

34 Loi du 11 juillet 1978 organisant les relations entre les autorités publiques et les syndicats du personnel militaire des forces terrestre, aérienne et navale et du service médical, Moniteur belge, 18 August 1978. 35 Arrêté royal du 25 avril 1996 portant exécution de la loi du 11 juillet 1978 organisant les relations entre les autorités publiques et les syndicats du personnel militaire des forces terrestre, aérienne et navale et du service médical, Moniteur belge, 1 May 1996.

Military Law in Belgium

207

ious objection does not arise since army recruitment is now based on voluntary service. e. Equal Treatment Equality of treatment before the law and non-discrimination is guaranteed by the Constitution (Articles 10 and 11). By a well-established jurisprudence, the Cour d'arbitrage has considered that only such restrictions to the equality principle are constitutional which are necessary in a democratic society, i.e. which are objectively justifiable and proportionate to the aim of the measure. /

Other Fundamental Rights and their Restrictions

aa. Right to Work Active members of the armed forces may not have any other paid job, be it directly or through someone else, be it a public sector or a private sector job (Article 18 RDF). Exceptions may be granted by the Minister of Defence in certain cases (e.g. teaching, etc.), provided the job is compatible with the needs of the service. The exception must be granted prior to entry into functional status, and is revocable ad nutum (Article 19 RDF).

bb. Freedom of Residence In order to preserve the operational capacity of the armed forces, and in the interest of the service, the King, or under exceptional circumstances which he determines, the military authority which he designates, may compel some categories of military personnel (determined by the King) to reside within certain territorial areas (Article 14 bis RDF).

2. Legal Obligations of Soldiers According to Article 9 RDF,36 members of the armed forces must at all times: (1) serve the country conscientiously and with courage, at the risk of their lives if necessary,

36

Loi du 14 janvier 1975 portant règlement de discipline des Forces armées, Moniteur belge, 1 February 1975.

208

Pierre d'Argent

(2) conscientiously accomplish all the service duties which the Constitution, the laws and regulatory measures, regulations, instructions, and orders applicable to the armed forces place upon them, (3) show respect to the Head of State, the constitutional powers, and the institutions of the State, (4) avoid compromising the honour or the dignity of their status and their function, (5) avoid any activity which contradicts the Constitution and the laws of the Belgian people. Military personnel may not be off duty or absent without authorisation or justification (Article 10 RDF). Military personnel may not, even after their term of service has ended, reveal information classified as secret or confidential due to its nature or military prescriptions. Nevertheless, this duty may not in any way contravene the defence of any individual right. All members of the armed forces are under an obligation to inform the Minister of Defence or the judiciary of any conspiracy which aims at abolishing, by the use of force, the institutions established by the Constitution and the law (Article 13). Military personnel must preserve the moral and material interests of the State. They must see to the conscientious execution of service duties by their subordinate personnel; they bear the responsibility of the good use and conservation of the material and financial means put at their disposal or of which they are in charge (Article 17). 3. The Power of Command and the Duty to Obey According to Article 8 RDF, 37 the purpose and object of any order must be the service, i.e. the execution of the missions which fall upon the personnel to which the order is directed, according to their status or function. Orders given by superiors must be faithfully obeyed in the interest of the service. An order must not be obeyed, however, if it is obvious that its execution may lead to the perpetration of a crime or dereliction (Article 11 (2)). 4. Social Rights of Soldiers and their Families Social rights of soldiers are defined in a complex set of rules. Among the principal sources of those rules, one must quote the basic statutory laws, i.e. the five laws of 20 May 1994 (all published in the Moniteur belge of 21 June 1994, and for some of them already modified on certain points): 37

Loi du 14 janvier 1975 portant règlement de discipline des Forces armées, ibid.

Military Law in Belgium

-

209

the law on the "mise en oeuvre des forces armées, à la mise en condition, ainsi qu'aux périodes et positions dans lesquelles le militaire peut se trouver", the law on the status of military personnel, the law on the status of short-term military personnel, the law on the pecuniary rights of soldiers, the law on the use of military personnel outside the armed forces.

Each law is completed by several implementing Royal Decrees. Also of some importance are the laws of 1 March 1958, on the status of career officers in the armed forces38 and the Law of 27 December 1961, on the status of active warrant-officers.39 Numerous other laws and regulations come into play when one tries to define the various social rights of soldiers. As a matter of expediency, the following social rights are noted: -

-

-

Right to benefit from a group insurance subscribed by the Minister of Defence and covering death or permanent injury 40 Right to indemnities in case of temporary incapacity to work Right to indemnities in case of work-related accidents and professional sickness (with special packages for air force accidents, mine cleaning operations etc.) Right to child support allowances Right to favourable rates in official crèches (these are not crèches open only to the children of the military; in general there are no schools or day-care centres reserved for the children of soldiers) Right to annual holiday allowances Right to social assistance and counselling Right to religious assistance (chaplain service) Right to unemployment benefits on returning to civilian life Retirement pension rights and the right to an early retirement Survivor and orphan pension rights (with some special rights to funeral allowances) Right to free medical care within the medical service of the armed forces:

According to Article 48 of the recent law of 19 July 2001,41 all members of the personnel of the Ministry of Defence, be they civilian or military,42 benefit 38

Moniteur belge, 15 March 1958, several times modified.

39

Moniteur belge, 12. January 1962, also modified several times.

« Article 43 of the Law of 19 July 2001, Moniteur belge, 28 July 2001. 41

belge,

42

The right to free medical care within the medical service of the armed forces existed

Loi-programme du 19 juillet 2001 pour l'année budgétaire 2001, Moniteur 28 July 2001. A n implementing Royal Decree has still to be issued.

Pierre d'Argent

210

from a right to free medical care within the medical service of the armed forces. Also, and according to the same Article, family members of all members of the personnel of the Ministry of Defence having an administrative residence abroad enjoy the same right to free medical care. They benefit from that right to free care when they are treated by the medical service of the armed forces or treated in a foreign hospital to which they are referred to at the initiative of the medical service of the armed forces. It must, however, be stressed that if there is a right to free military care within the medical service of the armed forces, there is no duty to be cared for by the military medical service. The person concerned may always choose to opt for a civilian doctor or hospital. This has, however, some financial consequences, since the costs of the civilian medical care will normally not be taken on by the Ministry of Defence, except in special circumstances (for example, when the military medical facility required does not exist, or is too distant in an emergency situation). Only normal social security benefits will be granted to soldiers who prefer to be treated by civilian doctors. Extra costs, not covered by the social security may nevertheless be reimbursed by private insurances contracted by the soldier or by a group insurance contracted by the Ministry of Defence. In fact, Article 44 of the Law of 19 July 2001, allows the Minister of Defence to contract medical insurance so as to insure civilian and military members of the Ministry of Defence, and their families. The contract should incorporate the same contractual rights as those of other federal civil servants. General Order No. J/719 Β of 20 September 1996, regulates in detail the various situations in which a member of the armed forces or of the Ministry of Defence seeks care in the civilian medical sector: -

-

Reparation pension rights (in case of injury related to armed service in time of peace, or in one of the engagement modalities abroad or in war-time) Some form of right to find by priority a position outside the armed forces but within other State services Various forms of special allowances and compensations for serving abroad according to one of the various under-positions and engagement modalities (on those, see above II. 4.) Right to free postal service and to a certain reimbursement of other communications (mainly telephone) when in service abroad.43

All these rights, and especially the fact that the rights (indirectly) benefiting the families of the military are not much different from those existing for other long before the law of 2001. This law extends that right to all employes of the Ministry of Defence. 43

Law of 19 July 2001, Article 42.

Military Law in Belgium

211

kinds of employees, seem more to be signs of an "occupational" model, rather than an "institutional" model. This is also confirmed by the rules governing overtime work.

5. Rules Governing Working Time a. Working Time and Compensation for Overtime Soldiers of all ranks must, in principle, work 38 hours a week. Overtime work is compensated in kind by special leaves at the end of each quarter, or is financially compensated by a special allowance. Those financial compensations are granted when the task fulfilled is either: (i)

within the normal functions, but is especially hard and requires at least 10 hours a day, or (ii) when the charge is outside normal functions and requires an uninterrupted presence of at least 24 hours, or (iii) when the serviceman in active duty is placed in one of the following "subpositions": intensive service ("en service intensif'), assistance ("en assistance"), or operational engagement ("engagement opérationneF) (on those categories, see above II. 4.). The amount of compensating varies according to the task fulfilled and is usually calculated by taking 1/1850th of the gross annual salary as a basic reference (i.e., could be 0,5/1850 or 3/1850, etc.).44 b. Holidays and Special Leave Members of the armed forces have a right to annual holidays and holiday allowances. The regulations for soldiers in this regard do not differ much from those for other civil servants. Usually, warrant-officers and soldiers enjoy 30 days of paid holidays, while officers, on top of those long-term holidays, may benefit from about 30 more days of "petits congés" that are taken during the year when activity is reduced. Special leaves may be granted for many various health (including giving blood...), professional, personal (sports competitions...), or family reasons. These leaves usually do not result in a reduction of salary. While on holidays or on leave, soldiers are still considered to be on active duty (see above II. 4.), i.e. their obligations are not suspended, they are merely authorised

44

For more details, see the internal document of the Ministry of Defence entitled: "Normalisation des prestations du personnel militaire - A-014-1".

212

Pierre d'Argent

to be absent from their place of service. Details on forms of leaves, conditions and rights in that respect, with legal basis, are listed in a document issued by the services of the General Staff.45

6. Legal Remedies, in Particular Rights to File a Complaint a. General Right to File a Complaint Several distinctions must be drawn in this area since several ways exist through which complaints may be lodged by members of the armed forces, according to the wrong they claim to have suffered. The first and easiest way to form and address a complaint on any topic, including a complaint about the behaviour of fellow soldiers, is through the normal hierarchical chain of command. It is a general and undisputed procedure. This right is enshrined in the Royal Decree of 30 December 1959 on Military Discipline. Appeal against any decision concerning a soldier may be addressed to the superior having taken that decision (Article 31) or to the immediate superior of the superior who has made of the decision (Article 31 bis). Nothing suggests that those ways of complaint are not open to foreign soldiers placed under the command of Belgian officers. The second way of forming a complaint is to contest the disciplinary sanction taken. Appeal may be lodged against any disciplinary sanction (see below, VII. l.b.). The third way of forming a complaint is to seek for the annulment of an administrative decision. The claim is then addressed to the Conseil d'État, section administration, which is the one and only administrative court in Belgium. Such an annulment will only be pronounced if it is proven that the act in dispute is an administrative act and that it suffers from a legal flaw (like the lack of explicit motives), or if the procedure that must be respected for its adoption has not been fully respected (on the possible administrative review by the Conseil d'État of disciplinary measures, as opposed to sanctions, see below, VII. l.b.). The fourth way of forming a complaint is to seek legal remedy in the normal judiciary system. A case may then be lodged against the Minister of Defence, who represents the State in any matter related to his ministry or the armed forces. Such cases may only be lodged if a civil or political right of the claimant is at stake. Normal judicial procedure then applies (Tribunal de première instance, Cour d'appel, Cour de cassation), with the possible request for interim measures in case of emergency. 45

Instruction sur les congés et permissions,

1999, A12-1.

Military Law in Belgium

213

b. Complaint to the Ombudsperson The fifth way of forming a complaint is non-judicial/adversarial: it is through a mediation procedure. The Law of 22 March 1995 on the Federal Mediators 46 established a federal ombudsperson service. It forms an independent administrative authority within the federal administration. The Federal mediator can be seized of a complaint by any interested person relating to the functioning of any federal administrative authority, including the Ministry of Defence or the armed forces. The interested person may also be a foreign soldier under the command authority of a Belgian officer. There has never been such a case, but nothing would seem to prevent such a situation, which is quite similar to the situation of foreigners lodging complaints from abroad against the Belgian consular or embassy services. The mediator may address recommendations to the relevant administration. He then informs the responsible minister. He must also address to the Parliament a yearly report. In the 2000 and 2001 reports,47 it is noted (pp. 101 and 80) that, as in the previous years, only a few complaints related to the Ministry of Defence or the armed forces were addressed to the federal mediator (16 [39] complaints for the year 2000 [2001], with only one [two] declared founded and a [two] recommendation[s] made to the Ministry). Most of those claims in 2000 and 2001 related to resignations sent in by warrant-officers having computer skills who presumably wanted to get a better salary in the private sector. Those resignations were rejected by the Minister of Defence for the sake of the interest of the service. In only one case was this rejection classified by the mediator as a bad and unfair administrative decision. In previous years, some complaints relating to change of functions or to the relations between superior and subordinate were addressed to the federal mediator. Other complaints, relating to the functioning of the Ministry of Finance, have been addressed by members of the armed forces or their families, in cases of compensation claims. c. Right to Petition Article 28 of the Constitution proclaims the right of any individual to address signed petitions by one or several persons to the public authorities.48 This right

46

Moniteur belge, 7 April 1995.

47

Available online: http://www.mediateurfederal.be.

48

"Chacun a le droit d'adresser aux autorités publiques des pétitions signées par une ou plusieurs personnes. Les autorités constituées ont seules le droit d'adresser des pétitions en nom collectif".

214

Pierre d'Argent

is neither restricted nor regulated by any law and also applies to the members of the armed forces.

VI. The Relationship of the Superior to Subordinate Personnel 1. Legal Rules Concerning the Relationship between Superior and Subordinate a. The Position of the Superior Military hierarchy is based on rank and seniority within rank. A member of the armed forces is superior to another one if he (she) has a superior rank, or, when ranks are equal, if he (she) enjoys seniority within that rank. If rank and seniority are equal, the regular member of the armed forces has authority over the complementary member of the armed forces, who has authority over the auxiliary member of the armed forces, who has authority over the temporary member of the armed forces, who has authority over the short term member of the armed forces, who has authority over reserve members of the armed forces. Nevertheless, in peace time, regular officers or warrant officers have authority over reserve officers or warrant officers of the same rank, whatever their seniority within that rank. (Article 5 RDF).

b. The Duties of the Superior Hierarchical authority must be exercised with firmness, equity, and correctness. Superiors are responsible for the orders they give and the response of the unit they command, as well as for the smooth functioning of the service. They are also responsible for the disorders caused by their subordinates, when those disorders have arisen due to their negligence or their excessive tolerance (Article 11 RDF). A superior must be an example for his subordinates, be loyal towards them, and respect their dignity. The subordinate must always act faithfully towards his superiors, must show respect for them, and must, if need be, take personal initiatives in the exercise of his functions (Article 12).

2. Subordination of Soldiers to the Command of a Superior of Foreign Armed Forces As explained in the answer to question II. 5., Belgian authorities always retain "full command" of their armed forces, but may delegate the operational com-

Military Law in Belgium

215

mand of some parts of the forces to a foreign or an international authority. This has to be done by special agreement,49 the form of which will usually be an "accord en forme simplifiée," which is constitutionally accepted in Belgium. It has to be noted that the Conseil d'État raised no objection when the 1949 Washington (NATO) Treaty was approved, thus apparently considering that the Constitution presented no obstacle to placing Belgian troops under foreign operational control.50 According to the Royal Decree of 9 January 1951,51 the Minister of Defence may designate which military units are affected by the execution of the measures taken to implement the recommendations of the NATO Defence Committee. Thus, the Minister of Defence can place some parts of the armed forces under foreign operational command. This designation of some military units does not amount to a decision to use force (i.e. the "full command"), this being solely in the hands of the Belgian authorities. Inversely, Belgian authorities will never enjoy full command over foreign troops, only the operational command that has been agreed with the foreign state concerned.

3. Service Regulations and their Legal Nature Service regulations usually take the form of a General Order (Ordre général) or of a Regulation (Règlement). These are issued by the État-Major Général, i.e. the General Staff. The purpose of these regulations is to make explicit and implement rights, duties, and procedures within the armed forces. As such, these regulations, like any other internal regulation, do not create rights or duties. They are just implementing detailed internal notices.

49

In that sense, see R. Ergec, La crise du Golfe et le droit public des opérations militaires, (1991) Journal des tribunaux, p. 138. 50

Avis du Conseil d'État, Chambre, Documents No. 344, p. 2. 51

Parlementaires,

Session

1948-49,

Arrêté royal du 9 janvier 1951 relatif à l'affectation des forces belges à l'exécution du Traité de l'Atlantique-Nord, Moniteur belge, 11 January 1951, p. 145.

216

Pierre d'Argent

VII. Sanctions 1. Disciplinary Law a. Disciplinary Power The Law of 14 January 1975, containing the Disciplinary Regulation of the Armed Forces, regulates disciplinary power and measures.52 Any breach of the rights and duties of a member of the armed forces, as explained above, is a disciplinary offence. Also considered as disciplinary offences are the acts of (i) selling, giving, pledging, exchanging, destroying, or making disappear any piece of small personal equipment, (ii) quarrelling or showing excessive behaviour, or being impertinent towards other members of the armed forces, provided that this behaviour is the result of impetuosity, (iii) stealing to the disadvantage of other members of the armed forces or of the State (Article 21 RDF). Disciplinary power lies in the hands of the superior (in the sense described above, VI., 1. a.) who exercises the functions of the Commander-in-Chief of the regiment (chef de corps) to which the member of the armed forces is attached. That officer may delegate his disciplinary powers to another officer in charge of the detachment (détachement) or isolated post (poste isolé). Minor disciplinary measures can be imposed by the commanding officer of the unit. When the superior needs to sanction a more senior soldier, he must refer the matter to a higher ranking officer. The superior of an authority who has sanctioned a soldier may always, if no appeal has been lodged, and after having received the advice of that authority, modify, annul, or suspend a disciplinary measure. That superior may enhance the sanction only after having heard the soldier concerned, who then has a right of appeal. When the offending officer is a general, disciplinary power lies in the hands of three lieutenant-generals having been chosen by lot. When no superior exists, the highest ranking offending officer may be sanctioned by the eldest general officer of the same force (Articles 30-32, 34-35).

b. Disciplinary Sanctions and Measures, their Purpose and their Compatibility with the European Convention on Human Rights The following disciplinary measures are available against all members of the armed forces (Articles 22-29 and 41 (1)):

52 Loi du 14 janvier 1975 portant règlement de discipline des Forces armées, Moniteur belge, 1 February 1975.

Military Law in Belgium

217

-

call to order, i.e. verbal warning, remonstrance, i.e. reprimand, simple arrest of 1 to 8 days (arrêt simple), which implies continuous presence within the unit for conscripts, participation in general duties, and a prohibition on going to the canteen, to the smoking room, or any other recreational place, - rigorous arrest of 1 to 4 days (arrêt de rigueur), which implies isolation within a locked room. Nevertheless, the personnel so punished take part in the normal service and general duties, except in exceptional cases decided by the commander. Rigorous arrest may be increased to up to 8 days at most, if the disciplinary offence is committed during a military operation or a similar operation, or in case of recidivism. Recidivism exists when a similar offence is committed within six months after notification of the previous disciplinary measure. Major disciplinary sanctions are, for the officers, simple arrests and rigorous arrests. For all the other members of the armed forces, major disciplinary sanctions are rigorous arrests. All other sanctions are considered as minor sanctions. Another disciplinary measure is available against conscripts, i.e. confinement from one to four times for four hours each, which implies presence within the unit after normal duty hours, participation in general duties, and a prohibition on going to the canteen, the smoking room, or any other recreational place. When a member of the armed forces has committed one or several grave disciplinary offences, he (she) may be put under control within his (her) unit, if this measure is required by the enquiry or for the sake of the maintenance of good order. The call to order is entered in the personal disciplinary file only when it is pronounced a second time by the same superior. All other disciplinary measures are entered in the personal disciplinary file after they are finalised. The disciplinary sentence is stricken from the file if no other offence has been committed for 3 years of service, or in some cases on promotion to a higher rank. Next to these purely disciplinary sanctions (also called "petite discipline"), some statutory disciplinary measures (also called "grande discipline") may be taken, i.e. measures taken following acts considered grave and incompatible with the status and dignity of the military status. These measures have an impact on the social status of the member of the armed forces concerned. These are mainly the "retrait temporaire d'emploi" (temporary cessation of activity) or the "retrait définitif d'emploi par démission d'office" (definitive cessation of activity, i.e. being definitively dismissed from the armed forces).53 53

See for officers: Loi du 1er mars 1958 relative au statut des officiers de carrière des

218

Pierre d'Argent

Those measures are taken by Royal or Ministerial Decree, the definitive dismissal being taken only after the enquiry and advisory opinion delivered by a special enquiry council ("conseil d'enquêté"; on the relationship with criminal offence, see below, VII. 1. c.). The Cour d'arbitrage has ruled that cumulative character of disciplinary measures and sanctions did not infringe any constitutional rule, nor the non bis in idem principle, nor the legality clause.54 The purpose of disciplinary sanctions and measures is to secure good order, discipline, decency, and efficiency within the armed forces. Neither the disciplinary sanctions and measures themselves nor the detailed disciplinary procedure seem to contradict the European Convention on Human Rights. c. Criminal Law and Disciplinary Law The relationship between criminal law and disciplinary law is regulated by Article 43 RDF, which states that no disciplinary sanction can be taken against a soldier who has been convicted by a criminal court even if the basis of that conviction is an act which is at the same time a disciplinary offence. N o disciplinary measure can be taken either if he (she) has been acquitted by a criminal court. Therefore, disciplinary and criminal sanctions are exclusive of each other, in the sense that criminal conviction or acquittal prevails over disciplinary measures, and may not be supplemented by such measures. Article 24 of the Law of 15 June 1899, containing the Military Criminal Procedure Code, 55 states that the military prosecutor or judge may send the case to the disciplinary authority if the penal offence is not considered serious. The non-cumulative character of criminal convictions and disciplinary sanctions does not apply when statutory disciplinary measures are concerned (on the distinction between sanctions and measures, see below, d.). If a soldier is convicted of a criminal offence, if that offence is considered sufficiently grave by a special enquiry council (conseil d'enquête), he (she) may be definitively dismissed from the armed forces.56

forces armées, Moniteur belge, 15 March 1958, several times modified, Articles 17-24 bis; for warrant-officers: Loi du 27 décembre 1961 relative au statut des sous-officiers du cadre actif des forces armées, Moniteur belge, 12 January 1962, several times modified, Articles 19-27bis; for temporary members of the armed forces: Loi du 20 mai 1994 portant statut des militaires court terme, Moniteur belge, 21 June 1994, Article 16. 54

C.A., arrêt No. 59/97 du 14 octobre 1997, Moniteur belge, 12 December 1997.

55

Loi du 15 juin 1899 comprenant le titre 1er du Code de procédure pénale militaire, Moniteur belge, 30 June 1899. 56

See for officers: Loi du 1er mars 1958 relative au statut des officiers de carrière des forces armées, Moniteur belge, 15 March 1958, several times modified, Article 23; for

Military Law in Belgium

219

d. Disciplinary Procedure and Legal Remedies The Royal Decree of 19 June 198057 implements the Law of 14 January 1975, and determines the disciplinary procedure. The disciplinary procedure is normally an oral procedure, but it starts with a written information report from the superior who believes a disciplinary offence has been committed to the superior who holds, according to the law (see supra, a.), disciplinary power. That superior may require an investigation into the facts, and notifies the soldier concerned of the charges laid against him (her) in an introductory report. The soldier concerned has no less than 6 hours to submit remarks to that report. No sanction can be taken until (i) the soldier concerned has been duly informed of the charge laid against him (her), (ii) the soldier concerned has had the opportunity of defending himself against that charge, (iii) the soldier concerned is present, except in exceptional written procedures. The sanction must be justified, and the soldier concerned may consult the disciplinary file. The defendant may be assisted by another member of the armed forces of his choice, who may at any time decline to render this assistance. When the case is brought before the disciplinary council (conseil de discipline; see infra), the soldier concerned, may require the assistance of counsel. Another member of the armed forces, of higher rank than the soldier concerned but who is not the author of the information report, is present at the time of the oral procedure, unless the soldier concerned prefers to be heard alone. A right of appeal exists against any kind of disciplinary measure (Article 37 of the Law of 1975) and must be lodged within 2 days of the first instance decision. The appeal suspends the execution of the disciplinary sentence. The superior appeal authority is determined by Article 5 of the Royal Decree of 1980, and varies according to who the first instance disciplinary authority was. If the appeal authority concludes that the disciplinary breach must be sanctioned by a major measure, he must, before ruling, request the advice of the disciplinary council. If the advice is not followed, reasons must be given. The disciplinary council is made up of 3 members, the presiding member being at least of the rank of captain, and one of the other members being at least a superior warrant officer, the other being of the same rank as the offender. The secretary

warrant-officers: Loi du 27 décembre 1961 relative au statut des sous-officiers du cadre actif des forces armées, Moniteur belge, 12 January 1962, several times modified, Article 25. 57

Arrêté royal du 19 juin 1980 relatif à la procédure disciplinaire militaire, Moniteur belge, 8 October 1980. That decree replaces a previous decree of 4 February 1972, modified on 11 March 1975.

220

Pierre d'Argent

of the council is a warrant officer. The advisory opinion must respond to the following questions: Are the facts established? Do they constitute a disciplinary breach in the circumstances under which they took place? Do any mitigating or aggravating circumstances exist? Must they be sanctioned by a major disciplinary measure? Suspension of a sentence from 3 months to 2 years may be granted in certain circumstances (see Art. 26 of the Royal Decree of 1980). The disciplinary sentence may also be annulled by the general Chief-of-Staff if he considers that the facts have not been established, the procedural rules have been breached, or the facts do not constitute a disciplinary breach. Disciplinary measures must be taken within the year following the commission of the wrong. After that, they are time-barred. This delay is interrupted by any procedural act undertaken during this year (Article 42 of the Law of 1975). One must also note that annulment of a statutory disciplinary decision (a disciplinary measure is an administrative act) may be pronounced on request by the Conseil d'État, section administration. Such an annulment will only be pronounced if it is proven that the disciplinary measure suffers from a legal flaw (for example, the lack of explicit motives) or if the disciplinary procedure has not been fully respected. It is important to note that the Conseil d'État has so far declared admissible only those review claims relating to disciplinary measures ("grande discipline"), i.e. measures which may have an impact on the administrative status and career of the soldier concerned (see above at VII. 1. b.). On the basis of the travaux préparatoires of the Law of 1946 instituting the Conseil d'État, it has systematically ruled that disciplinary sanctions ("petite discipline"), minor or major in the sense indicated above (VII. 1. b.), are inadmissible for review, since they are purely internal measures and do not bear any consequence on the status of the member of the armed forces concerned. This distinction - which is not practised anymore by the Conseil d'État of France and its consequence on the inadmissibility of the review of disciplinary sanctions having no statutory character or impact, has been upheld as being constitutional by the Belgian Constitutional Court, i.e. the Cour d'arbitrage,58

e. Representation of the Armed Forces during Disciplinary Procedures There is no special office representing the armed forces during disciplinary proceedings, unless one considers the disciplinary council to be such. It should, however, be noted that the auditeur général (i.e. the military prosecutor) is added, as a counsel, to the 3-member committee of Lieutenant-Generals charged

58

C.A., arrêt No. 59/97 du 14 octobre 1997, Moniteur belge, 12 December 1997.

Military Law in Belgium

221

with the duty of sanctioning an offending officer with the rank of General (Article 34 of the Law of 1975). f . Measures of Commendation In the laws on the status of officers and warrant-officers, detailed rules (completed by implementing Royal Decrees and armed forces regulations) exist as to the procedure of permanent evaluation, i.e. grading of the soldiers.59 These grades are used when a promotion is considered. Next to those statutory elements, measures of commendation may take the form of awarding many types of citations and medals, for different kinds of acts and services rendered to the armed forces, the public, or the country. These commendation measures may even take the form of a nobility title, which could be - this is fairly exceptional today - conceded on an hereditary, and not only personal, basis.

2. Military Criminal Law a. General Issues The Law of 27 May 1870, containing the Military Penal Code, provides for a special military criminal law.60 The code regulates special offences that can be committed only by soldiers, and states which sanction is attached to each offence. The crimes are related to the duty to serve (such as capitulation without fighting, disobedience, mutiny, treason, spying, etc.), to some special forms of violence, to desertion, etc. The Code applies to all members of the armed forces. Civilians employed in military service may be subjected, by Royal Decree, to certain provisions of military criminal law, provided this is stipulated in their employment contract (Articles 1 and 2 of the Law of 15 June 1899, containing the Military Criminal Procedure Code).61

59

See: Loi du 1er mars 1958 relative au statut des officiers de carrière des forces armées, Moniteur belge, 15 March 1958, several times modified, art. 12 et al.; for warrant-officers: Loi du 27 décembre 1961 relative au statut des sous-officiers du cadre actif des forces armées, Moniteur belge, 12 January 1962, several times modified, Art. 15 et al.; for temporary members of the armed forces: Loi du 20 mai 1994 portant statut des militaires court terme, Moniteur belge, 21 June 1994. 60

Loi du 27 mai 1870 contenant le Code pénal militaire, Moniteur belge, 4 June 1870, several times modified. 61

Loi du 15 juin 1899 comprenant le titre 1er du Code de procédure pénale militaire, Moniteur belge, 30 June 1899.

222

Pierre d'Argent

b. Relation to General Criminal Law Artide 58 of the Military Penal Code states that all the provisions of Book I of the General Penal Code are applicable to the infractions contained in the military code, if not derogated from. The Military Penal Code is therefore lex specialis which applies ratione personae. It is not exhaustive, in the sense that other incriminations contained in the General Penal Code (for example, murder) are applicable to members of the armed forces. c. Military Criminal Courts The Law of 15 June 1899, containing the Military Criminal Procedure Code establishes special military criminal courts: at first instance, the War Council (iConseil de guerre), and on appeal, the Military Court (Cour militaire). The law distinguishes between the permanent War Council and the War Councils at Large (en campagne). Currently, there is only one War Council, in Brussels. There is also only one Military Court, also in Brussels. High ranking officers have the benefit of only one degree of jurisdiction; cases against them are brought directly before the Military Court. These courts judge all the persons submitted to the Military Penal Code and regulations, be it for the breach of those laws or for the breach of ordinary law. However, members of the armed forces are subjected to ordinary courts and not the special military courts in the following ordinary criminal matters, provided they are committed in Belgium and not abroad: -

fiscal matters, hunting and fishing matters, road infractions and accidents, unless committed under an "ordre de marche", in cases with a civilian co-suspect (Article 23 of the Military Criminal Procedure Code).

d. Relationship Between Civilian and Military Courts When cases are brought simultaneously against persons subjected to the military courts and persons subjected to the ordinary criminal courts, because they are considered as being perpetrators, co-perpetrators, or accomplices, or because of closely connected infractions (connexité), the ordinary criminal courts may judge all the accused, even those who are members of the armed forces (Article 26 of the Code). In such a case, the ordinary court applies the military penal laws to the accused who is member of the armed forces (Article 30).

Military Law in Belgium

223

e. Special Rules with Respect to Legal Procedure and Sanctions System The procedural rules are provided for by the Law of 15 June 1899, containing the Military Criminal Procedure Code. f . The Military Prosecutor The public prosecutor's office attached to the War Council is called the "auditorat militaire. " The prosecutor's office attached to the Military Court is called the "auditorat général. " Members of these "auditorats" form a specialised and separate office within the Ministère public and are subjected to the authority of the "auditeur général, " the head of the "auditorat général. " They are not part of the military hierarchy, but of the "parquet," i.e. the Ministère public. They are appointed by the King and are selected by the usual procedures that apply for members of the judiciary. They have no authority regarding disciplinary offences, but may refer a minor criminal offence to the competent disciplinary authority (see supra). It must be noted that reform of the military criminal system (courts and auditorat) has been put on the political agenda several times, and that it is likely that all these institutions will soon be abolished, at least during time of peace. On 6 November 2002, the government issued a draft law in this regard. 62 g. Justification by Superior Orders Article 70 of the General Penal Code states that no crime or dereliction is committed when the questionable act was ordered by the law and commanded by an authority. 63 This very general provision applies to superior orders in the armed forces as a cause of justification. The Cour de cassation has consistently ruled that for the justification to be valid, the orders must have been given in the regular manner and the violence used limited to what was strictly necessary to carry out the orders (see also infra, h.).64 In the case of a subordinate legally excused by Article 70 of the General Penal Code, Article 152 of the same code states that the legal punishment for the offence shall be inflicted upon the superior who ordered the commission of the wrong. 62

Projet de loi réglant la suppression des juridictions militaires en temps de paix ainsi que leur maintien en temps de guerre, Chambre, Documents Parlementaires, 5ieme session de la 50ème législative, 6 Novembre 2002, No. 2108. 63

"Il n'y a pas d'infraction lorsque le fait était ordonné par la loi et commandé par l'autorité. "

64

Cass., 18 février 1952, Pasicrisie, 1952,1, p. 352.

224

Pierre d'Argent

h. Sanctions for Non-Compliance with International Humanitarian Law On 16 June 1993, a law was enacted in order to give "universal jurisdiction" to Belgian courts to judge people accused of having gravely breached the 1949 Geneva Conventions and their 1977 Additional Protocols (i.e. war crimes, including crimes committed during non-international armed conflicts). 65 That law was amended by the Law of 10 February 1999,66 in order to widen the "universal" competence of the Belgian courts to crimes against humanity and genocide. The "universal jurisdiction" given to the courts is very wide: the nationality of the accused and his victims does not matter, the place where the crime was committed is of no importance, and it does not matter whether or not the accused is found and arrested in Belgium. 67 Hence, the law has served as the basis for numerous complaints that have received wide publicity. It is even more so since the law allows for complaints based on facts otherwise time-barred, and for complaints directed against persons who would normally enjoy immunity from jurisdiction. The law has been praised by some but criticised by others,68 and has been at the centre of the case opposing the Democratic Republic of Congo and Belgium at the International Court of Justice.69 That law applies to members of the Belgian armed forces, as well. It has to be stressed that when a Belgian citizen commits one of the aforementioned 65

Loi du 16 juin 1993 relative à la répression des infractions graves aux conventions internationales de Genève du 12 août 1949 et aux protocoles I et II du 8 juin 1977, additionnels à ces conventions, Moniteur belge, 5 August 1993. 66 Loi du 10 février 1999 relative à la répression des violations graves du droit international humanitaire, Moniteur belge, 23 March 1999. 67 The intent of the legislature is clear in that regard, but the text of the law did not reflect clearly that intent since no specific exception was made to Article 12 of the Law of 17 April 1878, containing the preliminary title of the Code d'instruction criminelle: This Article requires the presence of the accused on the territory for Belgian courts to have jurisdiction when crimes were committed abroad, except in cases explicitly provided for. The Chambre des mises en accusation of the Brussels' Court of Appeals has for that reason (absence on the Belgian territory) ruled criminal suits lodged against Mr. Yerodia, former Foreign Affairs Minister of the RDC, and Mr. Ariel Sharon, Prime Minister of the State of Israel to be inadmissable (see rulings of 16 April 2002, and 26 June 2002, in: Jurisprudence de Möns, Liège et Bruxelles, 2002/21). 68

See P. d'Argent, La loi du 10 février 1999 relative à la répression des violations graves du droit international humanitaire, (1999) Journal des Tribunaux, pp. 549-555. 69 ICJ, Case concerning the Arrest Warrant of 11 April 2000, (Democratic Republic of the Congo v. Belgium), judgement of 14 February 2002. At the request of the parties, the Court did not address the issue of universal juridiction in abstentia, but only the issue of immunity, and found the issuance and circulation of the warrant arrest delivered on 11 April 2002, by the Brussels's Juge d'instruction in clear violation of the rights of the RDC as it was directed to the then Foreign Affairs Minister of that State.

Military Law in Belgium

225

crimes abroad against any foreigner, jurisdiction of the Belgian courts exists, even if no complaint has been lodged by the victim or his family, and even if the foreign state concerned has not officially apprised the Belgian authorities of the matter. Article 6 of the law states that Article 70 of the General Penal Code, which provides for a cause of justification (see supra, g.), does not apply to the crimes listed by the law. It has to be mentioned that the adoption of the Law of 1993 was postponed for a long time, notably during the cruise missile question of the 1980s, since it was feared that the law would allow Belgian courts to judge US officers in charge of nuclear warheads, should they be used. i. Ratification of the Rome Statute of the International Criminal Court Belgium signed the ICC Statute on 10 September 1998, and ratified it on 28 June 2000. Parliamentary approval was given by the Law of 25 May 2000.70 Upon ratification, Belgium made the following declarations: "Declaration concerning Article 31 (1) (c) Pursuant to Article 21 (b) of the Statute, and having regard to the rules of international humanitarian law which may not be derogated from, the Belgian Government considers that Article 31 (1) (c), of the Statute may be applied and interpreted only in conformity with those rules. Declaration concerning Article 87 (1) With reference to Article 87 (1) of the Statute, the Kingdom of Belgium declares that the Ministry of Justice is the authority competent to receive requests for cooperation. Declaration concerning Article 87 (2) With reference to Article 87 (2) of the Statute, the Kingdom of Belgium declares that requests by the Court for cooperation, and any documents supporting the request, shall be in an official language of the Kingdom." 7 1 One may question the compatibility of the Laws of 1993 and 1999, giving very wide "universal jurisdiction" to Belgian courts, with the complementary character of the ICC as stated in its Charter. 72

70

Loi portant assentiment au Statut de Rome de la Cour pénale internationale, fait à Rome le 17 juillet 1998, Moniteur belge, 1 December 2000, p. 40367. 71 72

Source: .

On this, see my paper quoted above note 68 and the Memorandum of the R D C in the case of the Warrant Arrest of 11 April 2000.

226

Pierre d'Argent

Vili. Regulations Governing Guard Duties 1. Sentries Service regulation A 4 ("Instruction sur le service intérieur") regulates the behaviour and duties of guards ("sentinelles"). Sentries are given strict orders of the nature of guard duties and they are supposed to carry out those orders and stay at their posts until they are discharged by other sentries, with the presence of a corporal. Sentries must be alert and observe the surroundings from their posts. They are allowed to stay in the sentry-box only in case of bad weather; even in that event, they must still come out of the box whenever commanded to do so or in order to carry on their duties. Sentries must always keep a good attitude; they must remain silent and only speak to the public in case of necessity; they must not move too far away from their assigned post. Sentries are usually provided only with blank ammunition, but they may also have live ammunition, if the circumstances require it. The commanding officer determines whether the ammunition is to be kept in the ammunition box or loaded in the rifle. In principle, sentries carry their rifles on their shoulders ("à la bretelle"), not in an open aggressive attitude. They are allowed to use any means at their disposal to carry out their orders and ensure respect for them. Use of firearms is however permitted only in two cases: self-defence and enforcement of specific guard duties. Self-defence is regulated by the General Penal Code, Articles 416 and 417. Use of firearms in self-defence is only permitted if the following circumstances occur cumulatively: -

-

existence of an unjust, violent, actual or immediately threatening grave danger, directed against persons. This means that armed force may not be used to oppose legal violence exercised by police forces or other authorities. Use of armed force is not justified by self-defence when the attack is no longer immediate, impossibility of preventing such an attack by any means other than the use of fire power, proportionality of the defence means used and the gravity of the attack.

The law allows the use of armed force in self-defence only to protect persons, not material goods, unless the attack against material property represents an immediate threat of danger to persons. There is a presumption that such a danger exists if (i) one tries, during the night, to climb over a fence or a wall, or one tries to enter by breaking doors or windows in a building that is occupied by human beings, or if (ii) during daylight or at night, theft, looting, or plundering are carried on with violence against persons.

Military Law in Belgium

227

Use of armed force is also authorised in case a sentry needs to enforce his (her) guard duties. If the sentry has received the order to prevent anyone crossing the point he (she) has to keep, he (she) must arrest anyone coming in his (her) direction. The sentry must first shout the command to halt. If this command produces no effect and the person or group continues progressing in the direction of the guarded post, the sentry must shout the command to halt a second time. If this second command does not produce any effect, the sentry must warn his (her) commanding post by shouting "Aux armes!" or any other agreed signal, and then, immediately after, shout a last warning towards the advancing person or group: "Halte ou je tire!" ("Halt, or I open fire!"). The sentry then loads his (her) rifle (if it is empty) and then shoots towards the advancing person or group if the third warning has been ignored. The use of fire power by sentries in these two cases may be directed against enemy military personnel or civilians, be they nationals of the country of the sentry or foreigners.

2. Military Police The Military Police (MP) is part of the armed forces, and its personnel have military and not regular police status. Outside military barracks, the MP has the power to control only military vehicles and personnel. The MP only intervenes inside military installations at the request of the commanding officer of those installations. The MP has authority over civilians in very limited circumstances: -

-

-

it may control civilians employed by the Ministry of Defence, Military Police guarding the House of Parliament and the various Regional and Communities Parliamentary Assemblies have the responsibility of safeguarding general public order in and around those buildings in accordance with the regulations given by those assemblies, it may intercept any civilian entering military grounds or installations. In case a crime or dereliction is committed, the civilian concerned is handed over to the judicial authorities as soon as possible, it may take notice of, and report to the competent police authorities, specific traffic offenses committed by civilians.

3. Performance of Guard Duties by Soldiers of Foreign Armed Forces When Belgian troops are on guard duty abroad, no question of Belgian law arises, only questions of public international law and of the domestic law of the host state. Questions of Belgian law arise when foreign troops are on guard

228

Pierre d'Argent

duty in Belgium. Within Belgian territory, it is a sovereign prerogative to exercise public force towards the general public. That sovereign power must be exercised and controlled by Belgian authorities, which derive their powers from the Constitution and the implementing laws and decrees.73 That power to police, control, contain, and limit the freedom and behaviour of the public may not be delegated to any foreign authority. Article 34 of the Constitution (see above, II. 5.) allows the delegation of the exercise of certain powers by treaty or by statute to certain public international law institutions. Those terms seem to prevent the delegation of sovereign powers to any foreign State. It is therefore highly questionable whether, even by treaty or statute, foreign soldiers could legally exercise any guard duties in Belgium that could involve coercive means towards the general public. Orders issued by those foreign soldiers could not be seen as those of an authority that must be obeyed. They could be seen as voies de fait. It is probably for that constitutional reason that Belgian police and troops are charged with guarding NATO Headquarters in Brussels. The same reason explains why when, in the 1980s, US cruise and Pershing missiles were stocked in some Belgian military installations, only Belgian troops were stationed outside the fence, whereas US troops patrolled the inside. This situation is more or less comparable with the one of a foreign embassy on Belgian soil, with the difference that Belgium renounces the right to exercise its sovereign powers within embassy grounds.

IX. Legal Reforms with Respect to Multinational Operations and Structures 1. Pertinent Legislation The main legal reforms to the armed forces have been the result of the transformation of a conscript army to a professional army, and the enactment of the five major laws of 20 May 1994, published in the Moniteur belge on 21 June 1994, and amply referred to above. Also important, even if less perceived by the military and the public, is the new constitutional prohibition of the use of the armed forces in a way which would violate the general rules of public international law (see above, II. 1.). Of political if not legal importance are the guidelines on the participation of the armed forces in peace-keeping operations that were adopted after the Rwanda fiasco (see above, II. 2.).

73 Article 33 of the Constitution: "Tous les pouvoirs émanent de la Nation. Ils sont exercés de la manière établie par la Constitution".

Military Law in Belgium

229

2. Probability of Future Reforms Except for the forthcoming Eurocorps treaty o r an institutionalised contribution to the future E U standing force - and the reform of the military criminal system and courts in time of peace (see above, VII., 2., f.) - not much in the way of substantial legal reforms to the armed forces seems to be on the agenda for the near future.

3. Academic Discussion There is n o real academic debate on these issues, neither in the constitutional law circles nor in the international law circles. T h e only debates that exist are in the field of research focused on the recent development of the EU. T h a t research is more linked to political science than to law.

X. Select Bibliography 1. Pertinent Legislation - Constitution, Articles 10, 11, 28, 34, 37, 91, 107, 114, 167, 182, 183, 185, 186 - Loi du 27 mai 1870 contenant le Code pénal militaire, Moniteur belge, 4 juin 1870 - Loi du 15 juin 1899 comprenant le titre 1er du Code de procédure pénale militaire, Moniteur belge, 30 juin 1899 - Arrêté royal du 9 janvier 1951 relatif à l'affectation des forces belges à l'exécution du Traité de Γ Atlantique-Nord, Moniteur belge, 11 janvier 1951 - Loi du 1er mars 1958 relative au statut des officiers de carrière des forces armées, Moniteur belge, 15 mars 1958 - Loi du 27 décembre 1961 relative au statut des sous-officiers du cadre actif des forces armées, Moniteur belge, 12 janvier 1962 - Loi du 14 janvier 1975 portant règlement de discipline des Forces armées, Moniteur belge, 1 février 1975 - Loi du 11 juillet 1978 organisant les relations entre les autorités publiques et les syndicats du personnel militaire des forces terrestre, aérienne et navale et du service médical, Moniteur belge, 18 août 1978 - Arrêté royal du 19 juin 1980 relatif à la procédure disciplinaire militaire, Moniteur belge, 8 octobre 1980 - Loi du 16 juin 1993 relative à la répression des infractions graves aux conventions internationales de Genève du 12 août 1949 et aux protocoles I et II du 8 juin 1977, additionnels à ces conventions, Moniteur belge, 5 août 1993

230

Pierre d'Argent

- Loi du 24 décembre 1993 relative aux marchés publics et à certains marchés de travaux, de fournitures et de services, Moniteur belge, 22 janvier 1994 - Loi du 20 mai 1994 relative à la mise en oeuvre des forces armées, à la mise en condition, ainsi qu'aux périodes et positions dans lesquelles le militaire peut se trouver, Moniteur belge, 21 juin 1994 - Loi du 20 mai 1994 relative aux statuts du personnel militaire, Moniteur belge, 21 juin 1994 - Loi du 20 mai 1994 portant statut des militaires court terme, Moniteur belge, 21 juin 1994 - Loi du 20 mai 1994 relative aux droits pécuniaires des militaires, Moniteur belge, 21 juin 1994 - Loi du 20 mai 1994 relative à l'utilisation de militaires en dehors des forces armées, Moniteur belge, 21 juin 1994 - Arrêté royal du 6 juillet 1994 portant détermination des formes d'engagement opérationnel et des activités préparatoires en vue de la mise en oeuvre des forces armées, Moniteur belge, 20 juillet 1994 - Arrêté royal du 25 avril 1996 portant exécution de la loi du 11 juillet 1978 organisant les relations entre les autorités publiques et les syndicats du personnel militaire des forces terrestre, aérienne et navale et du service médical, Moniteur belge, 1 mai 1996 - Arrêté royal du 6 février 1997 relatif aux mâchés publics de fournitures et de services auxquels s'applique l'Article 3, § 3, de la loi du 24 décembre 1993 relative aux marchés publics et à certains marchés de travaux, de fournitures et de services, Moniteur belge, 25 février 1997 - Arrêté ministériel du 12 novembre 1997 fixant le règlement du personnel civil du Ministère de la défense nationale, Moniteur belge, 28 novembre 1997 - Loi du 10 février 1999 relative à la répression des violations graves du droit international humanitaire, Moniteur belge, 23 mars 1999 - Loi du 25 mai 2000 portant assentiment au Statut de Rome de la Cour pénale internationale, fait à Rome le 17 juillet 1998, Moniteur belge, 1 décembre 2000

2. Books and Articles A. Alen (et al.), Compendium van het Belgisch staatrecht, 2 vol., Kluwer, Antwerpen, 2000. R d'Argent, "Le Roi commande les forces armées", Revue belge de droit international, 1994/1, p. 213 et seqq. R d'Argent, "Le traité d'Amsterdam et les aspects militaires de la Politique Étrangère et de Sécurité Commune (PESC)", in Y. Lejeune (éd.), Le traité d'Amsterdam. Espoirs et déceptions, Bruylant, Bruxelles, 1998, pp. 383-404. P. d'Argent, "La loi du 10 février 1999 relative à la répression des violations graves du droit international humanitaire", Journal des Tribunaux, 1999, pp. 549-555. F. Delpérée, Le droit constitutionnel de la Belgique, Bruylant, Bruxelles, 2000.

Military Law in Belgium

231

F. Delpérée, Droit constitutionnel, t. II, Le système constitutionnel, 1. Les pouvoirs, Larder, 1986. P. De Visscher, "La Constitution belge et le droit international", Revue belge de droit international, 1986/1, pp. 44 et seqq. W. J. Ganshof van der Meersch, "Le commandement de l'armée et la responsabilité ministérielle en droit constitutionnel belge", in Extrait de la Revue de l'Université de Bruxelles, mars-juin 1949, pp. 66 et seqq. M. Uyttendaele, Précis de droit constitutionnel belge: regards sur un système institutionnel paradoxal, Bruxelles, Bruylant, 2001. G. Verhofstadt, P. Mahoux, Commisson parlementaire sur les événements au Rwanda. Rapport fait au nom de la Commission d'enquête par MM. Mahoux et Verhofstadt, Sénat belge, session 1997-1998, 6 décembre 1999.

Chapter 4 Military Law in Denmark J0rgen Albraek Jensen 1

Table of Contents I. The Historical and Political Background of the Danish Military Law System 1. Parliamentary Control and the Dignified Role for the Individual Soldier 2. Democratic Control and Rights and Duties of Soldiers a. The Constitution b. The Government c. The Public II. Basic Rules Concerning the Use of Armed Forces 1. The Mission of the Armed Forces 2. Permissible Operations a. Crisis Management Abroad b. Humanitarian Aid at Home and Abroad c. Combined Operations with Civilian Aid Organisations d. Cooperation between the Armed Forces and Other Governmental Authorities, States of Emergency at Home, and Natural Disasters or Humanitarian Catastrophes at Home e. Evacuation of a State's Nationals f. Use of the Armed Forces in Other Cases 3. Limitations on Operations Undertaken Jointly with the Armed Forces of Another Country III. Constitutional Powers 1. The Powers of the Head of State and of the Government 2. The Participation of Parliament in the Decision to Deploy the Armed Forces and in the Conclusion of Treaties 3. The Functions of the Minister of Defence 4. The Role of the Military Leadership 5. Parliamentary Control a. The Parliament's Powers to Control the Armed Forces b. Special Forms of Parliamentary Control over the Military, Ombudspersons c. Court of Auditors and Comparable Institutions 6. Judicial Control IV. The Structure of the Armed Forces V. Soldiers'Rights and Duties 1

Professor of Law, University of Aarhus.

235 235 236 236 236 237 237 237 239 239 239 240

240 240 240 241 242 242 243 244 245 245 245 246 246 247 247 248

234

VI.

VII.

VIII. IX. X.

Jorgen Albrsek Jensen 1. Restrictions on the Fundamental Rights of Soldiers a. General Issues b. Political Neutrality c. Other Restrictions 2. Legal Obligations of Soldiers 3. The Power of Command and the Duty to Obey 4. Social Rights of Soldiers and their Families 5. Rules Governing Working Time a. Working Time and Compensation for Overtime b. Holidays and Special Leave 6. Legal Remedies, in Particular Rights to File a Complaint a. General Right to File a Complaint b. Complaint to the Ombudsperson 7. Rights of Institutional Representation The Relationship Between Superior and Subordinate Personnel 1. Legal Rules Concerning the Relationship Between Superior and Subordinate a. The Position of the Superior b. The Duties of the Superior c. The Use of Force to Secure Compliance with Orders 2. Subordination of Soldiers to the Command of a Superior of Foreign Armed Forces 3. Service Regulations and their Legal Nature Sanctions 1. Disciplinary Law a. Disciplinary Power b. Relation to Criminal Law c. The Purpose of Disciplinary Law d. Disciplinary Measures e. Disciplinary Law and the European Convention on Human Rights . . f. The Disciplinary Procedure and Legal Remedies g. Representation of the Armed Forces During Disciplinary Proceedings h. Measures of Commendation 2. Criminal Law a. General Issues b. Relation to General Criminal Law c. Military Criminal Courts and their Relation to Civilian Courts . . . . d. Special Rules with Respect to the Legal Procedure and the Sanctions System e. The Military Prosecutor f. Justification by Superior Orders g. Sanctions for Non-Compliance with International Humanitarian Law h. Ratification of the Rome Statute of the International Criminal Court Regulations Governing Guard Duties Legal Reforms with Respect to Multinational Operations and Structures . . Select Bibliography 1. Pertinent Legislation a. Acts b. Administrative Regulations 2. Books and Articles

248 248 249 250 252 253 255 256 256 257 257 257 258 259 260 260 260 261 261 262 265 265 265 265 265 266 266 267 267 268 268 269 269 269 269 270 271 271 271 272 272 273 273 273 273 274 274

Military Law in Denmark

235

I. The Historical and Political Background of the Danish Military Law System 1. Parliamentary Control and the Dignified Role for the Individual Soldier Two major events form the general background for the Danish military law system: one of these is Denmark's defeat at the hands of the Prussian army in 1864, and the other is the German occupation of Denmark from 1940 to 1945. The Danish army has not been in real combat since 1864 when it was defeated by the Prussian army, an event partially caused by the serious misjudgement of the international and military situation on the part of the Danish military and political elite. On account of this defeat, a large part of Jutland was lost to Prussia (Germany), and those parts of the lost territories populated with ethnic Danes were not reunited with Denmark until after the First World War. This experience finally convinced Danish politicians and the Danish public that Denmark was no longer a military power. In fact, it led to a period lasting almost 100 years in which a belief in military solutions was practically non-existent (expressed by one of the period's famous politicians, who asked: "What's the use [of trying to defend a small country like Denmark by military means]?" The Danish military played a very humble role during this period, which lasted up through the end of the German occupation of Denmark in 1945. As a result, the question of the military's democratic accountability was never a point of contention. However, the German occupation of Denmark in April 1940 and the resistance movement during the occupation led to a dramatic change in the general population's attitude towards military policy. By the end of the occupation, the question was no longer "What's the use?" with an implied neutrality toward international conflicts, but rather "Never again an April 9th" (the day of the German occupation in 1940), implying that Denmark should indeed try to build up a military that could hold back a potential aggressor. However, most people understood that this would not be possible unless Denmark allied itself with other countries, giving up its century-long tradition of neutrality. In the first years after the war, there were negotiations concerning a Nordic Defence Association, but when these negotiations proved unsuccessful Denmark quickly decided to join NATO and became one of its founding members in 1949. With the beginning of rearmament, and particularly with the accession to NATO in 1949, the importance of the military gradually began to increase, but, as democratic traditions are deeply rooted in Denmark, the military never questioned - either in words or in deeds - the supremacy of the politically elected organs of society.

236

Jergen Albrsek Jensen

Thus, the question of the military's democratic accountability has never raised real problems, and consequently the military law system does not contain any special provisions for ensuring democratic accountability. The lack of problems in this area has, however, had the somewhat paradoxical effect that the role and position of the individual soldier has never really been examined, and that consequently there is no coherent set of regulations concerning this area. On the other hand, Danes seem to have the general impression that Danish soldiers participating in international operations are very flexible, able to make decisions on their own if necessary, and generally respected, which might be seen as circumstantial evidence that Danish soldiers enjoy the position to which any citizen in a modern democratic society is entitled.

2. Democratic Control and Rights and Duties of Soldiers a. The Constitution The Constitution (Grundloven) does not contain any explicit provision concerning the establishment of armed forces or defining their goals or their role in society. The existence of the armed forces is, however, implied in several articles of the Constitution, e.g. in Article 19 (2), which regulates the competences of the Government and Parliament when the armed forces are used against foreign powers, and in Article 85 which regulates the limitation of ordinary democratic rights for members of the armed forces. (Both of these provisions will be dealt with elsewhere in this chapter). b. The Government With the end of the Cold War around 1990, the Danish military no longer had an obvious raison d'être. All realistic external threats to Danish territorial security had vanished, making it necessary to discuss which tasks a future Danish military should aim to accomplish. As a small country, Denmark has consistently been an advocate of some form of universal security system, and it was therefore natural to put greater emphasis on this aspect of security policy once more immediate concerns had been laid to rest. In the political agreement concerning the purpose and size of the future Danish military that the major parties entered into in 1993, one of the significant new features was the creation of an International Brigade consisting of 4,500 soldiers. The idea was to create a standing force that could be used for peace-keeping and peace-making purposes in cooperation with other countries in case of international crises - mainly in Europe, but also elsewhere. The soldiers that make up the Brigade are pro-

Military Law in Denmark

237

fessional soldiers and former conscripts who have signed a special agreement with the military committing themselves to take part in multinational operations in which the Government has decided to participate. For taking on this commitment, the members of the Brigade receive a monthly supplementary payment. c. The Public

The reorientation of Danish military policy in the 90's has encountered very broad support among the population. Resolutions to participate in various multinational operations (starting with the Gulf War, and involving, inter alia, peace-keeping operations in the former Yugoslavia, the bombardments of Serbia in connection with the Kosovo-crisis, and operations in Afghanistan in the aftermath of 11 September) were passed by large majorities in Parliament, and opinion polls showed heavy popular support for the participation. Even the (few) casualties that these operations have entailed have not diminished popular support. The US requests for help in connection with the "war against terrorism" following the attacks of 11 September 2001, have been met by almost unanimous political support in the Danish Parliament, and the Danish Prime Minister was one of the first to declare his support for any counter-measures that the United States might take after the attacks. The new Danish Government formed in November 2001 has continued this policy. Opinion polls show that a vast majority of the Danish population agree with the policy pursued by the Government in this situation. There seems to be a general understanding in the Danish population - at least as long as military participation is seen to benefit a "just cause," as has been the case with the operations in the 90's - that if they want to enjoy the benefits of a collective security system, they also have a moral obligation to participate actively in the operations undertaken by such a system.

Π. Basic Rules Concerning the Use of Armed Forces 1. The Mission of the Armed Forces The only provision of the Danish Constitution that deals directly with the use of military force is Article 19 (2), which reads as follows: "Except for purposes of defence against an armed attack upon the Realm or Danish forces, the King [Government] shall not use military force against any foreign state without the consent of the Folketing [Parliament], Any measure which the King may take in

238

Jorgen Albraek Jensen

pursuance of this provision shall immediately be submitted to the Folketing. If the Folketing is not in session, it shall be convened immediately." As can be seen, this provision does not limit the use of Danish military forces to any specific purposes or prohibit their use for certain purposes. The only requirement of the article is a formal one in that the consent of Parliament is needed in certain instances (use of armed forces against a foreign state). By implication this means that military force can be used against a foreign state without violating the Constitution, and that the military can be used for other purposes even without the consent of Parliament. Article 19 (2) would be applicable if Denmark were to defend itself against armed attacks - either alone or as part of a collective security arrangement - in the sense that the Government is indeed authorised to act immediately in case of attack without the approval of Parliament, but that such actions should be approved by Parliament as soon as possible after their initiation. The clause is also generally interpreted to mean that the Government can act on its own only to counter an immediate attack; it must seek the approval of Parliament for further action. When it comes to the question of participation in multinational operations with a UN mandate, the crucial question is whether the country where the troops are going to be used agrees to the deployment of the troops. If the country in question does not agree to the deployment, and the deployment is nevertheless undertaken, this would count as using Danish forces against a foreign state, and would therefore require the consent of Parliament. If, on the other hand, the country in question agrees to the deployment, the use of Danish forces would not require the consent of Parliament, but it would certainly fall within the scope of Article 19 (3), and thus would require consultation with the Foreign Policy Committee. According to Article 19 (1), the Government conducts foreign policy on behalf of Denmark. However, the same paragraph contains a number of instances where the consent of Parliament is needed (territorial changes, international agreements requiring new legislation, and obligations of "major importance"). In some of these instances the use of the military could be involved (e.g. an international agreement to send Danish forces to a troubled area would be an obligation of major importance, and thus require the consent of Parliament even if it is not considered as a use of force against a foreign state). Thus, Article 19 (1) is also of at least some importance in this context, but as para. (2) places no substantial limitations on the use of Danish military forces, it is only a provision securing the necessary political backing to the Government's initiatives in important areas. In conclusion, there are no constitutional limitations on the purposes for which Danish armed forces can be used, only procedural rules.

Military Law in Denmark

239

As indicated above, the mission of the armed forces is not regulated in the Constitution. However, Parliament has passed an Act on the Purpose, Tasks, and Organisation of Defence (hereafter referred to as the Defence Act - LFO) (Act No. 122 of 27 February 2001). According to Articles 1 and 2 of the Defence Act, "The military defence shall contribute to the promotion of peace and security," and "the defence constitutes an important means of security policy and has the purpose of 1) preventing conflicts and war, 2) upholding the sovereignty of Denmark and securing the continued existence and integrity of the country, and 3) promoting the peaceful development of a world with respect for human rights." The more detailed tasks of the military forces are outlined in the following Articles 3 to 6 of the Defence Act. Before covering these tasks in the following paragraphs, attention should be drawn to Article 7 of the Defence Act, according to which "the defence forces shall, according to the specified decisions of the Minister of Defence and after negotiations with the other ministers involved, be allowed to undertake other tasks." This article implies that the specified tasks in Articles 3 to 6 do not prevent the defence forces from taking part in other tasks, and generally this means that participation in the tasks described in the following paragraph is not excluded by either the Constitution or the Defence Act, but is left to the decision of the Government and Parliament.

2. Permissible Operations a. Crisis Management

Abroad

Such operations are covered by Articles 3 and 6 of the Defence Act. Article 3 deals with the participation of Danish troops in NATO and explicitly mentions crisis management as one of the purposes of Danish membership in NATO. Concerning crisis management outside the NATO area, Article 6 states that "Danish defence forces may contribute, with military means, to the prevention of conflict, and to peace-keeping, peace-making, humanitarian, or other similar tasks." b. Humanitarian Aid at Home and Abroad

Again such tasks are covered by Article 6 (humanitarian help abroad), Article 7 (humanitarian help at home), and possibly also by Article 4, according to which the defence forces can "... attend to tasks of public authority."

240

J0rgen Albraek Jensen

c. Combined Operations with Civilian Aid Organisations No special provision of the Defence Act covers this possibility, but the task could be fulfilled under Article 7. d. Cooperation between the Armed Forces and Other Governmental Authorities, States of Emergency at Home, and Natural Disasters or Humanitarian Catastrophes at Home These tasks could be pursued under Articles 4 and 7 of the Defence Act. The Constitution does not contain any rules restricting the use of the armed forces for domestic purposes, and the unwritten (constitutional) principle of legality ("rule of law") has undoubtedly been met by the provisions in Articles 4 and 7 of the Defence Act. Furthermore, it should be mentioned that Danish law does not - in contrast to German law - provide specific rules for internal States of Emergency. If it should be necessary to go beyond the existing rules in actual States of Emergency, the courts would probably endorse the necessary measures through the use of an unwritten, but generally recognised principle of jus necessitatis. Such a principle is explicitly recognised in the Penal Code (Article 13) in relation to otherwise criminal actions, but is designed to be generally applicable in Danish law. For instance, in connection with the German occupation of Denmark during the Second World War, the Supreme Court recognised after the end of the occupation that taxes had been collected during the occupation even though the "tax collection" had not been authorised by Parliament as the Constitution explicitly requires (for the simple reason that Parliament had ceased to function in 1943). In practice, this means that the military could, for example, carry out police tasks (as described in the general police law) - especially on the basis of Article 7 of the Defence Act, which would require that the relevant minister (the Minister of Justice) be consulted before the military is used for such purposes. The authorisation in Article 4 could - considering the context of the authorisation (the protection of Danish sovereignty) - probably only be used in connection with external threats - which might in turn lead to internal States of Emergency. e. Evacuation of a State's Nationals Articles 6 and 7 of the Defence Act cover this eventuality. f

Use of the Armed Forces in Other Cases

Article 7 of the Defence Act allows for the possibility of acting in cases other than those specified in Articles 3-6.

Military Law in Denmark

241

It is worth noting that the mentioned provisions of the Defence Act are all relatively broadly phrased, and that the Act also contains the "omnibus clause" in Article 7 to cover tasks which were not envisioned at the time of the enactment of the statute. The provisions in the Defence Act should not primarily be seen as legal limitations on the use of the armed forces but as policy statements that underline the basic ideas of the changed Danish security and defence policy since 1990. The Executive is generally considered to have been given control over the use of the military by the Constitution, which might also be a reason for not limiting their use by either the Constitution or ordinary statutes.

3. Limitations on Operations Undertaken Jointly with the Armed Forces of Another Country As long as the cooperation of the Danish armed forces with the forces of other countries is not considered as a "transfer of sovereignty" in the meaning of Article 20 of the Constitution (the problems of defining this concept will be dealt with in a later paragraph), it is constitutionally irrelevant whether missions are undertaken by the Danish military alone or in cooperation with the forces of other countries. On the other hand, if a cooperative mission is considered as a "transfer of sovereignty," the procedure laid down in Article 20 must be followed. In brief, this procedure entails that an Act transferring sovereignty must be passed by Parliament either by a majority of 5/6 of all Members of Parliament or by a simple majority in Parliament followed by a referendum. To reject the Act, at least 30% of the electorate must vote against it, and the "no" votes must form the majority of the votes cast. The referenda held in connection with Danish membership in the EU have shown that it is fairly difficult to pass Acts that involve a transfer of sovereignty. The Danish Government would therefore probably go to great lengths not to be involved in operations that could be considered as a transfer of sovereignty. It should be mentioned in connection with this issues, that the Defence Act, in Articles 3, 5, and 6, explicitly mentions that the tasks enumerated in these provisions could be carried out in cooperation with the forces of other countries, which further indicates that the Constitution does not in any way prohibit the use of Danish forces in cooperation with foreign troops.

242

Jorgen Albraek Jensen

ΙΠ. Constitutional Powers 1. The Powers of the Head of State and of the Government The Danish Constitution defines the King (or Queen) as the Head of State (Article 12), but also explicitly states that the powers of the King are exercised through ministers (responsible to Parliament) (Article 13). This means that wherever the Constitution attributes competencies to the King, the provisions should in all cases be interpreted to mean that the Government has the mentioned powers. The King is only a ceremonial Head of State, and even though the question was disputed earlier, the entire legal Danish community now agrees that it would be contrary to the principles of democracy to give the King personal powers. Up until the end of the Second World War, the King, to a certain extent, still played a personal role in foreign policy and military matters. Even though the formal responsibility was undoubtedly with the Government, the opinion of the King was taken into consideration, and in some cases the King actively sought to influence decisions in this area. However, since the end of the war (and the accession of a new King in 1947), the Monarch has merely been a ceremonial figure as described above. The Government as a collective entity is not mentioned in the Constitution, and therefore does not have any formal powers in connection with the use of the armed forces. Instead the executive powers are formally distributed among the individual ministers. In reality, important executive decisions are not taken by the individual ministers but by the Government as a whole in cabinet meetings which are held at least once a week. The Constitution itself contains several provisions which ensure that the Government in reality functions as a collective. The individual ministers are appointed and dismissed by the Prime Minister (Article 14), which means that a minister who uses his formal powers in a fashion which the majority of the Government does not approve of will probably not remain a minister for very long. Furthermore, the Prime Minister decides which subject areas are allotted to the individual ministries (and thereby ministers) (Article 14), which makes it possible in less serious cases of disagreement simply to transfer a subject area from, for example, the Ministry of Defence to the Ministry of Foreign Affairs. As already indicated, Article 19(1) states that "the King [Government] shall act on behalf of the Realm in international affairs," and Article 19 (2) implies that this also involves the use of military force in international affairs. When it comes to the use of military force in matters that are not "international affairs," the power of the Government to use such forces is contained in the general separation of powers clause in Article 3, according to which "The

Military Law in Denmark

243

executive powers shall be vested in the King." In contrast to the use of military force abroad, where Article 19 (3) of the Constitution requires that Parliament be consulted (and must give its approval if the military actions fall within the limits of Article 19 (2)), there is no similar requirement for parliamentary consultation or approval in the case of internal use of military force. This does not mean, however, that the Government has unlimited powers to use the military for such purposes. The principle of legality must be observed (i.e. that the military cannot be used in ways that would violate provisions contained in the Constitution) and Parliament can enact ordinary statutes limiting the potential uses of the military. The principle of legality imposes the general limit on the use of the military (as on any use of the general executive power of Article 3 of the Constitution) that any infringement on the rights of citizens must be authorised by law. The general parliamentary principle, which is a basic part of Danish constitutional law, means that the Government is responsible to Parliament for any use of the executive power, and in order to avoid a vote of non-confidence, a Government would probably consult with Parliament if it intended to use military force in unforeseen ways.

2. The Participation of Parliament in the Decision to Deploy the Armed Forces and in the Conclusion of Treaties This question has already been partly addressed in connection with some of the previous paragraphs. Use of armed forces against a foreign state normally requires the consent of Parliament (Article 19 (2)), and other instances of the use of the armed forces may require the consent of Parliament according to Article 19(1) (taking on obligations of "major importance"). Furthermore, the Constitution, in Article 19 (3), requires that the Government consult with a parliamentary committee (Foreign Policy Committee) prior to any decision of "major importance." The difference between Article 19 (1) and (3), is that (1) covers only "obligations," whereas (3) covers all foreign policy decisions even if they do not involve actual obligations. In principle, the Government is free to act without taking the advice of the Foreign Policy Committee into consideration, but because of the parliamentary principle laid down in the Constitution (Article 15), this would probably lead to the downfall of the Government. Article 19 (2) and (3) clearly demand that Parliament be consulted if Denmark is going to declare war on another country. On the other hand, neither the Danish Constitution nor ordinary legislation recognises the concept of internal State of Emergency, and consequently no formal rules on the participation of Parliament in such situations exist.

244

Jorgen Albraek Jensen

The question concerning parliamentary involvement in the conclusion of treaties is dealt with in Article 19 (1) of the Constitution. This means that treaties that involve certain kinds of obligations for Denmark must be ratified by Parliament whereas other treaties can be concluded by the Government alone. However, Article 19 (3) should also be mentioned in this context because it states that even if a formal ratification by Parliament is not necessary for a particular treaty, the Foreign Policy Committee must still be consulted before the conclusion of the treaty. This would almost always be the case for military treaties even if they do not fall under Article 19 (1), meaning that the Government would, in practice, always need to have the approval of Parliament before concluding such treaties - either formally (Article 19 (1)) or informally (Article 19 (3)). Another means of control which Parliament possesses is the power to allocate money for the actions of the Government. No money can be spent by the Government unless allocated by Parliament (or the Finance Committee of Parliament) (Article 46 (2)), and by refusing to give the amounts needed for the use of military forces, Parliament could effectively block any use of the forces that did not command the majority of its members' support.

3. The Functions of the Minister of Defence As already mentioned, the Constitution gives the Prime Minister the power to distribute the range of executive tasks to the individual ministers. Thus, no tasks are per se tasks for which the Minister of Defence should be responsible. However, in legal practice, the individual acts normally state which ministry is responsible for taking care of the tasks defined therein. Thus, for example, the Defence Act states in Article 9 that the Defence Minister is the highest responsible authority for the Danish defence forces, and the Defence Minister is explicitly mentioned elsewhere in the Defence Act (e.g. in Articles 10, 12, 13, 14, 15, and 17). The Defence Minister is also mentioned as the competent minister in the Administration of Military Justice Act. Therefore, in reality, the Defence Minister exercises the supreme powers in regard to the use of military force and in matters concerning the military in general. The constitutional prerogative of the Prime Minister means, however, that the provisions of the Acts in this respect are not binding for the Prime Minister, and that consequently he can by Royal Decree (without changing the text of the act) transfer the powers of the Defence Minister to, for example, the Foreign Ministry, or even to the Prime Minister himself.

Military Law in Denmark

245

4. The Role of the Military Leadership In the Defence Act, a number of responsibilities are given to the military leadership, e.g. in Article 11, according to which the Chief of Defence has the command of the armed forces, and Article 12, which gives the Chief of Defence the power to delegate some of this authority to international units or to subordinate officers of the Danish army. In all cases, however, it is expressly stated that he acts on the authority of the Minister of Defence, and thus - in reality on the authority of the Government as a whole. In other words, it means that the Government (the Minister of Defence) can at any time give orders concerning the powers of Articles 11 and 12. These orders must be followed by the military leadership. In conclusion, the military leadership plays no independent role of its own, although it is obvious that in strict military matters, and also in matters of military policy, the military leadership role is still very important.

5. Parliamentary Control a. The Parliament's Powers to Control the Armed Forces The control of Parliament in relation to the armed forces rests for the most part on the general control mechanisms which are available to Parliament vis ά vis the Executive. Some of these mechanisms have already been mentioned above. According to Article 3 of the Constitution, Parliament possesses the legislative power (in cooperation with the Government), which also includes the power to legislate in military matters. The general structure of the military, for instance, is regulated by statute (the Defence Act), there is a special Military Penal Code and a special Military Administration of Justice Code (see below at VI.), and the rules concerning cooperation and democratic participation within the armed forces are also laid down in a statute. The power to legislate implies that Parliament can at any time interfere with any aspect of the military of which it wants to take control, as the Constitution places few limits on which subjects may be regulated by legislation. The power to allocate money also lies with Parliament as already mentioned and gives Parliament a powerful, although indirect, means to control the activities of the military. The Danish system of government is governed by the parliamentary principle (Article 15) which means that a minister (or the whole Government) cannot stay in office if Parliament passes a vote of no-confidence. Such a vote is extremely rare in Denmark, but serves as the ultimate weapon for the control of Parliament in relation to governmental activities. On a day to day basis, other

246

Jorgen Albnek Jensen

general control mechanisms are more common: ministers may be required to answer questions from members of Parliament - either in plenary sessions or in the relevant parliamentary committees, Parliament can initiate debates, and Parliament can pass decisions recommending or requesting that the Government act in certain ways. Another general control mechanism that should be mentioned is the parliamentary Ombudsperson. The office of the Ombudsperson was created in connection with the enactment of the present Constitution in 1953 as Article 55, according to which a parliamentary Ombudsperson is elected (by Parliament) to "control the civil and military administration of the State." In other words, although there is no special military Ombudsperson, the Constitution explicitly states that the ordinary Ombudsperson can also control military matters. The office and responsibilities of the Ombudsperson are further regulated in an Ombudsperson Act (thoroughly revised in 1997). Of special importance in connection with military matters is the provision that the Ombudsperson can start investigations on his own initiative (and of course following complaints), and that the Ombudsperson can at any time demand access to all public institutions including, for example, military camps, etc. The Ombudsperson does take an interest in military matters, as can be seen from the annual reports that contain the most interesting decisions of the past year. The Ombudsperson has no formal authority in relation to the cases in which he is involved. The Ombudsperson Act states that he can only give his opinion and make recommendations; all the same the Ombudsperson commands enormous respect in the Danish system, and this means that his recommendations are almost always followed by the administration. b. Special Forms of Parliamentary Control over the Military, Ombudspersons The Foreign Policy Committee of Article 19 (3) of the Constitution is a special form of control, to the extent that the questions dealt with in the Committee also involve military questions. There is no special parliamentary control of the military intelligence service. c. Court of Auditors and Comparable Institutions The auditing of governmental spending is undertaken by a special office (the National Auditing Office), which is institutionally linked to Parliament and thus completely independent of the government. The National Auditing Office reports directly to Parliament (which must approve the nation's accounts). In order to prepare the decision on the accounts and to follow up on the reports of

Military Law in Denmark

247

the National Auditing Office, the Constitution requires in Article 47 that Parliament elect a number of Auditors (presently 6). The division of labour between the two auditing units assigns the more "technical" aspects of the auditing to the National Auditing Office, whereas the parliamentarily elected Auditors investigate whether the money appropriated has been used in accordance with the political intentions of Parliament.

6. Judicial Control In principle, Danish courts are authorised to review any administrative decision according to Article 63 of the Constitution. However, a precondition for this review is that a claimant with legal standing brings the case to the courts. In practice, this means that few cases would ever come before the courts, but the possibility cannot not be ruled out that e.g. a soldier who was designated to take part in a multinational force might be recognised as having legal standing. As demonstrated above, there are, in reality, no substantial limitations as to which multinational operations Danish troops could take part in, so even if a case should actually reach the courts, they would almost certainly have no grounds for interfering with the administrative decision. Furthermore, Danish courts have shown a considerable amount of judicial restraint in relation to "political" questions which would also make it difficult to convince the courts to interfere with the use of Danish troops for multinational purposes. For all practical purposes there is no judicial control of the use of military force or of the participation in multinational military operations, and no attempt has ever been made to bring such cases before the courts.

IV. The Structure of the Armed Forces In practice, the Danish armed forces are comprised of military and civilian personnel. This distinction is, however, in contrast to the German one, not based on any principled deliberations on the different tasks of the two groups, but is purely pragmatic. The actual membership of the two groups is probably fairly similar to that in Germany. The more detailed rules on who belongs to which group are laid down in the Act on Defence Personnel (hereafter the Personnel Act). In this act, the groups belonging to the defence proper are outlined in Article 2 as commissioned and non-commissioned officers with military rank (para. 1 (1)), and military prosecutors, members of the clergy serving in the armed forces, and other personnel

248

Jorgen Albraek Jensen

according to the decisions of the Defence Minister (para. 1 (2)). By implication, personnel groups not included in Article 2 are considered civilians. According to Article 3 of the Personnel Act, the Defence Minister can issue rules that temporarily give civilians the status of military personnel. As far as can be ascertained, such rules have never been issued. While the distinction between military and civilian personnel in the armed forces does not have any basis in principled deliberations, it is nevertheless important in another respect: Article 5 of the Military Penal Code (Militar Straffelov, hereafter MSL), declares that the MSL only applies to military personnel (except in times of war when all personnel groups of the armed forces are included (Article 6 MSL). Since the rules of the special Administration of Justice Act (Militar retsplejelov, hereafter MRPL) apply only to military penal cases (Article 1 MRPL), the MRPL is, obviously, also only applicable to military personnel. As a result, other personnel groups are subjected only to the General Penal Code and - maybe more relevant - the ordinary rules concerning employment in public administration.

V. Soldiers' Rights and Duties 1. Restrictions on the Fundamental Rights of Soldiers a. General Issues According to Article 85 of the Danish Constitution, "the provisions of Articles 71 [concerning Personal Liberty], 78 [Freedom of Association], and 79 [Freedom of Assembly] shall be applicable to the defence forces subject only to such limitations as are necessary due to the provisions of military laws." This leaves no doubt that some fundamental human rights can be limited for military personnel. From the wording of Article 85, it might seem natural to infer conversely that the other, non-enumerated fundamental rights could not be restricted, and that restrictions of the rights mentioned in Article 85 could take place only through statutory law. Both of these assumptions are, however, false. It has long been accepted in Danish law that the principle of legality requires that restrictions of citizens' rights must follow from statutory law or equivalent sources of law. One such source is customary law, and one established rule of customary law is that public institutions can issue administrative orders that restrict the rights of the "users" of such institutions, and that such administrative institutional orders based on customary law might even acquire the rank of constitutional rules, and thus set aside or limit constitutionally guaranteed rights.

Military Law in Denmark

249

An example of such an administrative institutional order is the right to censor the letters of criminal prisoners, which is in clear contrast to the wording of the constitutional freedom of speech provision (Article 77). There is general agreement that such censorship might in some cases be necessary, e.g. to avoid or minimise drug problems in prisons, or in order to prevent prisoners from directing people on the outside to destroy evidence, etc. There are, however, strict limitations on the use of such administrative institutional orders. First, the restrictions imposed must be absolutely necessary for the achievement of the purpose of the relevant institution (including that no other (milder) means are available to achieve the same purpose). This is the well-known principle of proportionality. Secondly, when it comes to administrative institutional orders infringing on constitutional rights, such orders will be subject to strict scrutiny from the courts and will always be interpreted narrowly. The particular relevance of Article 85 is that, in the subject areas mentioned in this article, restrictions of the mentioned fundamental rights are not subject to the limitations that apply to administrative institutional orders. A principle of proportionality has not yet been recognised in Danish law as a principle that limits the jurisdiction of the legislature (although some constitutional scholars have advocated it as such), and even if such a principle should be recognised, there is no doubt that the Danish courts would interpret the parliamentary statutes much less narrowly than the administrative orders, as Danish courts generally show great judicial restraint in relation to Parliament. b. Political Neutrality Any restrictions based on Article 85 of the Constitution must, according to that article, follow explicitly from the military laws. At least one provision of this character is included in the Military Penal Code (Militar Straffelov) MSL) (Act No. 642 of 30 September 1987), in which Article 29 states that "under extraordinary circumstances, the Defence Minister may forbid persons belonging to the military defence organisation to take part in political associations or assemblies [...]". This provision implies that, as a general rule, military personnel can take part in political associations (e.g. be members of (any) political party and stand for elections) or assemblies (e.g. a political demonstration also one concerning military matters), and that limitations can be issued only in emergency situations (war, impending war, grave internal unrest, etc.). The explanation for this very liberal attitude towards the participation of soldiers in political activities is probably the long-standing tradition of the military as such not to interfere in political affairs. Thus, military personnel are not considered to be a special group which needs special attention as a potential

250

Jorgen Albraek Jensen

threat to the democratic order, but - quite to the contrary - as ordinary citizens with the rights of every other citizen ("citizens in uniform"). The only restrictions allowed are those that could be explained with reference to the effectiveness and discipline of the military, and restrictions intended to uphold the political neutrality of the military in general. According to an administrative order from 1987, there are a few exceptions to the general rule that all kinds of legal political activity are permitted to military personnel. For example, if military personnel take part in demonstrations or meetings concerning service conditions or defence matters, they are not allowed to wear their uniforms (which by implication means that they are allowed to wear uniforms at other demonstrations), and superiors may not agitate politically in relation to their subordinates. Military personnel are not allowed to distribute political publications on military premises unless they follow the rules prescribed in another administrative order. According to this order, such material can be placed in libraries, reading rooms, etc., but nowhere else, and a copy of the material distributed must be given to a superior within an hour after the material has been distributed. In connection with general elections, referenda, etc., these rules can be modified so that further distribution is allowed. c. Other Restrictions Another restriction on the rights of military personnel based on Article 85 is Article 17 of the Administration of Military Justice Act (MRPL) (Militar retsplejelov) (Act No. 643 of 30 September 1987). According to Article 71 (3) of the Constitution, a person arrested by the police must be brought before a judge within 24 hours after the arrest, and only a judge can extend the period of detention. However, if a case is covered by the military law system, the period of time allowed before bringing the arrested person before a judge is tripled to 72 hours. The same attitude of considering soldiers as ordinary citizens in all respects that are not directly related to their military service also implies that soldiers cannot be compelled to take part in religious ceremonies (which would be in direct contradiction to the provisions of the Constitution guaranteeing religious freedom - Articles 67-70). Likewise, soldiers can marry under the same conditions as everyone else in Danish society. In the same way, the issue of homosexuality is not considered to be a question that is related to the functioning of a person in the military. Consequently, there are no rules prohibiting homosexuals from joining the military. (In practice, homosexuals might encounter difficulties in the military, as the military environment is still to a certain extent dominated by "macho"-values, but even

Military Law in Denmark

251

at the practical level the acceptance of homosexuality in Denmark is generally high and increasing. Denmark was the first country to accept same sex marriages, and high ranking politicians are openly homosexual without this fact having any adverse effect on their political support, etc.) Women can generally achieve the same positions within the military as men. Until the mid-90s, there were some minor restrictions on the role of women in the military (e.g. they could not become fighter pilots or take part in the International Brigade), but since 1995 even these last remaining differences between male and female soldiers have been abolished. Only men are drafted as soldiers. Since most of the ordinary private soldiers are in reality volunteers, the difference in this respect is no longer significant. Women can join the army on conditions similar to male soldiers. Regular officers in the military are organised in a trade union called The Defence Group of the Danish Confederation of Professional Associations (Forsvarsgruppen i Akademikernes Centraiorganisation), whereas the NCOs are organised in the Association of Non-Commissioned Officers (Harens Konstabel- og Korporalsforening). The regular officers are employed as civil servants, and as such they are not allowed to strike. Most of the NCOs (80%) are employed by contract (the remaining 20% are civil servants), but are still not allowed to strike, as the contract involves a duty to obey the MSL, and a strike is considered to be contrary to the military duties of Article 15 MSL. Nothing, however, prevents soldiers from presenting petitions - either individually or collectively. Conscientious objection has been recognised in Denmark since 1917 (Denmark was one of the first countries in the world to accept the notion of conscientious objection). Conscientious objection is possible if serving in the military is against one's religious or ethical beliefs. No great proof of conscientious objector status is required for young men who have received their draft notices, but are not yet in military service. It is a slightly more difficult to become a conscientious objector if one is already in the military, but since it serves no reasonable purpose to try to keep such people in if they are actively opposed to military service, practice is also relatively liberal concerning already-enrolled military personnel. Conscientious objectors (who were drafted) must serve in civil work instead - normally in public institutions or NGOs. The required service-time for conscientious objectors is longer than for drafted soldiers in order to discourage conscientious objection for reasons of pure convenience. A special problem concerns Jehovah's Witnesses, as it is also against their religious belief to carry out civil work instead of military duty. Until recently, members of Jehovah's Witnesses were put in jail for a period corresponding to the time they should have served in the military. The practice of the court has, however, recently

252

Jorgen Albrsek Jensen

changed to the degree that Jehovah's Witnesses now receive a suspended sentence with the condition that they perform "community service". Even though this is still formally a criminal sentence, in practice it has meant that Jehovah's Witnesses now serve under conditions very like those of other conscientious objectors.

2. Legal Obligations of Soldiers The Danish military law system does not contain any explicit list of the duties of armed forces personnel. However, the duties can be inferred from the provisions of the Military Penal Code. Without going into unnecessary detail, the main duties can be inferred from the headings of the various chapters of the MSL. The crimes that can be punished according to the MSL are enumerated in its Chapters 7 and 8, and the following headlines are used: Disregard of Military Duties (Article 15) (a very broad omnibus clause), Crimes against Duties as a Subordinate (Articles 16-20) (including the duty to obey commands and to show respect towards superiors and guards), Crimes against Duties as a Superior (Articles 21-22) (including the duty to treat subordinates equally and without causing unnecessary trouble, and the duty not to accept any favours from subordinates), Illegal Absence (Article 23), Abuse of Military Position (Articles 24-25) (especially in times of war or crisis), Crimes against Special Military Duties (Articles 26-30) (the duty to guard properly, prohibition of intoxication in connection with military service, prevention of damage to military property, and the commission to stop mutiny and treachery, if possible), and Crimes against the Armed Forces' Ability to Fight (Articles 31-37) (disclosure of military secrets, espionage, tampering with military material, different forms of treason and desertion). Most cases regarding the MSL concern the omnibus clause in Article 15. Therefore, I will give a brief outline of what kinds of offences have been grouped as "Article 15 crimes". Most cases concerning the violation of the MSL do not reach the ordinary courts, but are solved within the military disciplinary system itself (compare VI.). This fact results in the consequence that very few decisions concerning the violation of military law are published - thus, by going through the (semi-)official publication of court decisions from the last three years, I did not find a single case concerning military law. To a great extent, the following is therefore based on older material contained in the last edition of the annotated edition of the MSL. Crimes that have been characterised under Article 15 include: the violation of duties of supervision, threats of violence, illegal use of disciplinary measures, breach of rules concerning complaint procedures, violation of the duty of

Military Law in Denmark

253

comradeship, possession of drugs, superior's demand of personal favours from subordinates, illegal demonstrations and political agitation (compare VI., 1.), false statements, reckless military exercise, and abuse of military authority. There is no special oath connected to military service, but there is no doubt that military service includes the duty to serve loyally, and to risk one's life in military service if this is considered necessary by the military authorities. This is - at least indirectly - expressed in Articles 16 and 17 MSL, which criminalize disobeying the orders of superiors. Political loyalty is not required by Danish soldiers in the sense that they are obliged in word or action to support a certain (democratic) way of life or political system. As long as they do not violate specific provisions, they are entitled to believe in and work for any kind of political idea. In August 2001, there was a heated debate on this subject, as it was found out that, during the Cold War, soldiers with Communist sympathies were not being promoted even if they were professionally qualified. Even if such a practice was understandable during the Cold War, everybody agreed (in theory) that such a practice would not be acceptable today. However, it would probably be naive to expect that extreme political viewpoints are not taken into consideration when making personnel decisions in an area as highly sensitive as the military. The duty of comradeship is included in the duties in Article 15 MSL (compare above), as are at least certain aspects of the duty to be truthful, to uphold the reputation of the armed forces, and to maintain one's health in good order. There are, however, no specific provisions covering such duties. The duties of Danish soldiers are the same whether they operate in Denmark or abroad. Due to this fact, no special regulation exists for the behaviour of soldiers participating in multinational forces. Absence without leave is a crime covered directly by Article 23 MSL. There is no special regulation covering the maintenance of discipline, but ordinary breaches of discipline would generally fall within the limits of Article 15 MSL, and other more serious breaches of discipline could be covered by the more specific rules of the MSL, e.g. Article 16 (the duty to obey the commands of superiors), Article 27 (intoxication), or Article 35 (1) (trying to avoid danger during combat at the expense of fellow soldiers), etc.

3. The Power of Command and the Duty to Obey According to Article 16 MSL, a subordinate has the duty to obey orders from a superior, and if he fails to do so he can be punished according to the rules of the MSL. The duty to obey orders is, however, limited to orders that are not illegal. This is also shown in Article 9 MSL, which states that a subordinate can

254

Jorgen Albraek Jensen

be punished for taking part in an illegal action, even if he did so on the orders of a superior, if he knew that the action ordered was illegal or if it was selfevident that it was illegal. This means that a soldier has a duty to obey legal orders, that he may obey or disobey illegal orders as long as the illegality is not clear, and that he has a duty not to follow obviously illegal orders. In other words, all illegal orders are non-binding, but in the case of the not obviously illegal orders, the risk of not following such an order lies with the soldier who does not follow the order, if it is decided later that the order was in fact legal. According to service regulation B. 18-1987, a soldier who receives an order which he thinks is illegal is entitled to raise objections. The right to command is a reflection of these provisions - all commands must be legal - meaning that they must be both legal in their substance and be issued within the limits of the superior's rank, position, etc. Not every officer in the armed forces is allowed to issue orders of any kind - even if such orders are not illegal in content. Regarding formal illegality, it follows from the military system of ranks and different administrative-military units that a position as superior only applies to the subordinates of the particular unit that the superior is assigned to. If a subordinate in one unit were supposed to obey the orders of a superior of another unit, this would mean that the superior of the soldier's official unit did not have full command. In certain instances, the normal ranks and military units can be transcended if this is specifically provided for in the military rules (e.g. Article 16 MSL according to which the orders of guards must be obeyed in the same way as orders of superiors). The competencies of superiors of different ranks within the same unit are not regulated by any general regulation, but follow from the traditions and specific regulations of the individual units. As a consequence of the hierarchical system that dominates the military, the commander of each unit has - in principle - the full power to command his unit, and the commands of other superiors lower down in the hierarchy are issued after delegation from and at the responsibility of the commander. The question of illegality of content is decided on the basis of ordinary, general principles of law. Thus, a command must not be inconsistent with written rules - whether these rules be ordinary statutes or the Constitution. Furthermore, the general unwritten principles of administrative law - the principle of proportionality, the principle of equality, and the principle of legitimate considerations (abuse of power) - also apply in connection with military commands and their non-observance can make a command illegal. International law is not in itself binding on Danish citizens, but can become so if it is transformed into Danish law (as is the case, for example, with the European Conven-

Military Law in Denmark

255

tion on Human Rights, the Geneva Conventions, etc.). Likewise, the law of a host country is not necessarily binding on Danish soldiers, as they are still considered to be under Danish jurisdiction when taking part in multinational operations.

4. Social Rights of Soldiers and their Families As a consequence of the ideal of the soldier as a citizen in uniform, soldiers generally enjoy exactly the same social rights as every other citizen with the exception of certain benefits of the national health service, as some of the health service functions are taken care of by the military medical system. The military medical system more or less fulfils the tasks that family doctors carry out in civilian life, whereas other medical services are identical for military and civilian citizens. Thus, there are no special military hospitals or specialised clinics. Free primary medical care for drafted soldiers is provided by the military. All other personnel groups are included in the general national health service, as are drafted soldiers when more specialised medical services are provided. Generally, all medical services in Denmark are free of charge. To the extent that there are special military medical services, the same rules and regulations that are in force for civilian medical services apply to these special military medical services. The structure of the special military medical services is regulated by governmental decrees. If medical malpractice is carried out by civilian medical personnel, the ordinary complaint rules for patients apply. These include that complaints of medical malpractice must be presented to a Patients' Complaint Board. Malpractice within the special military medical system can be dealt with either through the Patients' Complaint Board or the military complaint system (compare 6.) at the choice of the complainant. An important aspect of the liability system in connection with medical malpractice is the fact that compensation to the victims of medical malpractice is awarded on the basis of strict liability, so that the victim does not have to prove that negligence was present, but only that injury was suffered. Another important aspect of the Danish general liability rules is that in most cases in which compensation is awarded as a result of the acts of an employee, the compensation is paid by the employer (in cases of medical malpractice the relevant public authority), and not by the employee responsible for the act leading to the compensation (compare Article 23 of the Liability Compensation Act (Erstatningsansvarsloven) - Act. No. 599 of 8 September 1986, with later amendments). The general applicability of social rights for soldiers and civilians alike also means that there are no special rules concerning legal help for soldiers. If the

256

J0rgen Albraek Jensen

case in which a soldier is involved concerns a violation of the MSL, he can, however, choose to be represented by a person within the military in stead of by the ordinary public defender provided for anyone involved in a penal case (Article 12 MRPL). In general, there are no special educational opportunities for soldiers, but many of the NCOs are offered a civilian education during their service as part of their employment contracts. This education normally lies within the technical area as such training can be useful for the military itself (e.g. training as electricians, mechanics, etc.). Leisure activities are organised by the individual military units, but there are no general regulations on this subject. The Danish military employs a number of clergymen who perform religious ceremonies and other religious duties such as religious guidance on an ad hoc basis, but there is no general duty to provide for religious services to the soldiers. The families of soldiers do not enjoy any special social rights.

5. Rules Governing Working Time a. Working Time and Compensation for Overtime First of all, it should be mentioned that conscript soldiers are generally not covered by the regulations concerning working hours etc., as they are not considered to be employees of the military, but as taking part in an education. The professional parts of the armed forces (both military and civilian) generally perceive their role in the military as that of employees, meaning that their attitude to the questions dealt with in this paragraph is dominated by viewpoints connected to an occupational and not an institutional structure. This has already been demonstrated above by the fact that Danish soldiers have formed trade unions with a very comprehensive membership and with all the usual tasks of ordinary trade unions. As mentioned above, these military trade unions are members of larger confederations of trade unions that include the trade unions from ordinary civilian life. Personnel employed in defence (civilian and military) are generally considered to be public employees and therefore to be covered by the general rules in force in the mentioned areas. Thus, working hours are in line with those of other public employees, as are rules for compensation for overtime, holidays (which will be 6 weeks in length starting in 2003/2004), etc. However, it follows from the nature of military duties that such rules have to be adapted to the special conditions of the military. For example, it is not always possible to give

Military Law in Denmark

257

military employees 11 hours of free time within each 24-hour period as normally required in Denmark, as military exercises sometimes stretch for several days in a row. In such instances there are special military regulations compensating the participating personnel in the form of free time. Another example is the statute on the working environment, which in principle also applies to the working environment of military personnel, but from which it is possible to procure exemptions when these are necessitated by the special duties of the military. b. Holidays and Special Leave

There are a number of regulations giving possibilities of special leave for public employees (and most other employees as well). These include: leave to take care of minor children, leave for educational purposes, and leave to take care of seriously ill family members. All these types of leave involve some kind of economic compensation during the leave period. In addition, there is always the possibility of applying for leave without pay which can - in principle - be used for any purpose. All these forms of leave also apply to personnel employed in the defence sector, but in connection with most of these forms of leave one has to agree with the employer on the duration of the leave, etc., or at least take the needs of the employer into consideration when using one's right of leave. This also, of course, is highly relevant for personnel employed in defence.

6. Legal Remedies, in Particular Rights to File a Complaint a. General Right to File a Complaint

The right to file a complaint is partly contained in an administrative order from 1987 ("Service Regulations"). Undoubtedly, its tradition is much longer, but it has not been possible to trace how far back the right to file a complaint has been regulated explicitly. The administrative order from 1987 regulates the right of complaint for all military personnel except for soldiers below the rank of non-commissioned officers, and, to a certain extent, for civilians employed in the armed forces. According to these rules, there are no limitations on the substance of the complaint, but a complaint must be put before the immediate superior - even if the complaint concerns the same (which is probably often the case). In all cases, the person complained about must be notified about the complaint. If it would damage the clarification of the matter, these rules can be dispensed with. If the superior refuses to deal with the complaint or if his decision is not satisfactory to the complainant, the complaint can be brought before a superior at the next level (i.e. the superior of the immediate superior).

258

Jergen Albraek Jensen

Complaints from civilians employed within the armed forces can be dealt with according to the same rules, or they can be dealt with according to the ordinary rules concerning the relationship between management and employees within the public sector. False complaints can, in serious cases, be covered by the relevant provisions of the General Penal Code in Articles 164 and 165. In less serious cases, false complaints can be dealt with as violations of Article 15 MSL (the omnibus clause concerning military duties). Article 15 can also be used in cases where the complaint is substantively well-founded, but where the formal rules elaborated above have been violated. However, in recent years, the tendency has been not to press charges for such formal violations if the complaint turned out to be relevant upon investigation. It follows from the service regulation of 1987 that the complaints might go all the way up through the military system. The service regulation does not mention the possibility of going to the courts with such complaints, but this does not mean that such complaints might not - in principle at least - be brought before the courts, as the Constitution guarantees the right to take any administrative question to court in Article 63. In practice, the courts review regular legal questions, but are very reluctant to review questions involving administrative discretion. As a result, military complaint cases have little chance of success before the courts, and consequently few cases of this kind are actually pressed that far. The complaints of privates can be put forward through the spokesman who is elected according to the Act on Cooperation in the Defence (see below at IV.7.). Complaints in the form of petitions from soldiers are allowed as the right to petition is included in the general civic rights of Danish citizens, and there is no explicit legal provision exempting soldiers from this right. b. Complaint to the

Ombudsperson

As mentioned earlier, the Parliamentary Ombudsperson controls all aspects of civil and military administration. This means that all complaints from military personnel could eventually reach the Ombudsperson. Normally, for the Ombudsperson to take up a case he must receive a complaint within a year after the event complained about took place, and all possibilities of administrative complaint must have been exhausted. However, the Ombudsperson can also act on his own initiative if he becomes aware of irregularities, procedures, etc. that need to be looked into further - e.g. if he becomes aware of such matters through the media. If he investigates a case on his own initiative, there is no time limit or requirement that the case must have undergone full administrative deliberation.

Military Law in Denmark

259

7. Rights of Institutional Representation The general framework for institutional representation of soldiers in Denmark is the Act on Cooperation in the Defence, which has been in force since 1967. The purpose of this Act is to promote the well-being of the individual soldiers, to strengthen solidarity, and to increase the effectiveness of the defence forces (Article 1). The system of representation is built on the model of a representative democracy, in which all units of the armed forces elect a spokesman who must act as a link between the unit and its superiors, including a duty to represent the interests of the unit in a broad range of subjects connected to the military service. This system of elected spokesmen is used at all levels of the military system, so that the spokesmen of the individual units of barracks, for example, form a "Committee of Spokesmen," which has the same tasks as the individual spokesmen but at a more general level. At an even higher level (e.g. covering a whole regiment), the local Committees of Spokesmen elect members to a "Committee of Contact", and, finally, a "National Committee of Spokesmen" elected among the individual spokesmen. The tasks of all these different representantive institutions are more or less the same, but it follows from the structure of the system that the questions dealt with in these organs become more and more general at the higher levels. It is important to note that none of these elected organs have any power to make binding decisions concerning the subjects discussed. Their importance lies first in the fact that they can receive and discuss information from the superiors attached to each organ and thus possibly create a greater understanding for the decisions of the superiors among the subordinates, and secondly in the possibility of the elected representatives to present individual and collective "complaints" before they create any real problems within the military unit, and thus contribute to the effectiveness of the military in general by ensuring that potential problems are dealt with as early as possible. The general impression seems to be that even though no formal influence is connected with the system of representatives and spokesmen at different levels, the superiors at different levels are quite responsive to reasonable wishes from the subordinates, and that the spokesman system is undoubtedly beneficial for the Danish defence forces.

260

Jorgen Albraek Jensen

VI. The Relationship Between Superior and Subordinate Personnel 1. Legal Rules Concerning the Relationship Between Superior and Subordinate a. The Position of the Superior In an administrative order from 1987, a superior is defined as a person who is entitled to command others (the subordinates) within a defined service area. Guards on duty are also regarded as superiors in that the orders of guards must be followed as if they were given by a superior (Article 16 MSL). The duty to follow the orders of superiors is presupposed in Article 16 of the MSL, as failure to follow orders is punishable according to its rules. In the administrative order from 1987, the duty to obey orders from superiors is further clarified. Article 3 (5) states that not only guards on duty but also patrols and military policemen are considered as superiors, and according to Article 4 (1), orders given by any military person in the name of a superior must be followed on the condition that the person actually giving the order belongs to the staff of the superior. For certain purposes (to obtain order or to prohibit disorder), all personnel with a higher rank and personnel with the same rank, but with greater seniority than the "subordinate," are regarded as superiors, with the effect that their orders must be followed. More specific regulations concerning the power to command may be established in the rules that are in force in the individual branches and units of the military. Thus, if the commander of a ship in the navy is unable to exercise his command, the command is not transferred to the most superior officer in general, but to the most superior officer with an education in navigation. This might mean that the ordinary hierarchy of the officers is changed during the period in which the commander is unable to fulfil his tasks. Another example is the regulation which declares that civilian teachers at military schools are superior to the soldiers (officers) taking part in the education. Disciplinary powers are authorised in the MRPL (see VII.), but the MRPL does not directly regulate who has the authority to administrate military disciplinary measures. Instead, the MRPL authorises the Minister of Defence to establish who may exercise disciplinary powers by administrative order (Article 39 MRPL). An administrative order from 1985 defines the competences of different superiors to use the different kinds of disciplinary measures: the competence is divided between the military prosecutor (auditeren) (who is not a superior is the ordinary sense, and does not normally have any power to command), the chief tribunal officers (rettergangschefer) (who are leaders of larger military units - MRPL Article 9 (2) - and further described in the administrative order from 1985 in Article 2 (2)), and commanding officers at lower levels. The gen-

Military Law in Denmark

261

eral principle is that the harshest disciplinary measures can be used only by the highest ranking disciplinary authority (the military prosecutor), and the further one descends in the military hierarchy, the more the use of disciplinary measures is restricted, (the details of the disciplinary system will be discussed in VII.). The power to command is thus distributed to a much larger group than the power to exercise disciplinary means. b. The Duties of the Superior The duties of superiors are only sparsely regulated in the MSL, but a few articles deal directly with these duties (Articles 21 and 22). According to Article 21, the superior must treat his subordinates equally and must not make military service more difficult and burdensome than necessary. According to Article 22, superiors must not take any favours from subordinates (e.g. gifts, loans, etc.) if this is done by abuse of his superior position or if it could make the superior dependant on the subordinate. Most duties of superiors are not explicitly stated in the MSL, but follow from the omnibus clause in Article 15, according to which military personnel can be punished for "not living up to the duties of their military service." This provision leaves a large amount of discretion to the courts regarding the definition of such duties. From court practice it can be ascertained that the duties of superiors include, inter alia, the duty to supervise subordinates in their performance of military duties, not to use threats of violence, to use disciplinary measures in accordance with the rules governing them, not to accept personal favours (including those that are not covered by Article 22 of the MSL) from subordinates, not to act negligently in connection with military practice and exercises, and to treat subordinates correctly, with respect, and without demeaning them in any way. c. The Use of Force to Secure Compliance with Orders It cannot be inferred from the fact that threats of violence may be punished as a violation of Article 15 that violence which is used to ensure that an order is obeyed is in every circumstance illegal. The general rule is, of course, that orders cannot be enforced through the use of (or threat of) violence, but in critical situations physical force may be necessary to ensure that an order is obeyed (compare Article 8 of the MSL).

262

J0rgen Albraek Jensen

2. Subordination of Soldiers to the Command of a Superior of Foreign Armed Forces Danish troops have taken part in multinational operations on numerous occasions. This in itself indicates that it is permissible to subordinate Danish troops at least partly to the command of foreign superiors. The legal basis for this can be found in the Defence Act, Article 12 (1) and (2). According to para. (1), the powers of the Chief of Defence can be delegated to the chief of an international force or mission, if the mission aims to fulfil purposes mentioned in Articles 5 and 6 of the Defence Act (compare II.2). According to Article 12 (2), powers can be delegated to the chiefs of certain NATO units when NATO forces are used to fulfil NATO tasks. It is important to note that subordination under foreign superiors has the character of a delegation. This has a number of implications. According to Danish legal theory a delegation must be limited in purpose and scope. This is achieved in the area of multinational operations by an agreement between the Danish Government and the international organisation/force which clearly states the purpose and authority of the multinational unit, and sometimes also limits the geographical range of the unit. In order to ensure that the delegation given to the foreign superior is used in accordance with the agreement, national control is maintained in relation to logistics, and the Danish superior commander of the force is instructed to report to Danish authorities if he thinks that the terms of the agreement have been violated. Furthermore, the responsibility for administrative matters in connection with the participation in the multinational force still rests with the Danish authorities, and jurisdiction over the participating Danish soldiers is not delegated. The Danish soldiers are thus still covered by Danish (military) law. Another implication of the concept of delegation is that a delegation can at any time be withdrawn, with the effect that the participating Danish forces are, according to Danish law, no longer allowed to take commands from the foreign superior. The withdrawal of a delegation must of course be done in accordance with recognised international law, but even if the delegation is withdrawn contrary to such law, this does not affect the duty of the Danish soldiers to obey the commands of the Danish superior instead of the superior of the international force. The great care taken to define Danish participation in international military operations as delegations of powers is due to the provisions of Article 20 of the Constitution, according to which a transfer of sovereignty can take place only after an elaborate procedure (see II. 3.). Were such a procedure in fact required, it would mean that participation in such operations would in practice be more or less impossible. The problem in connection with this subject is to define the

Military Law in Denmark

263

point at which the handing over of powers to non-Danish authorities becomes a transfer of sovereignty. Generally, the procedure set down in Article 20 is considered to be necessary only if non-Danish authorities are able to impose duties or confer rights directly on Danish citizens, as is the case, for example, when the EU Council passes regulations. With the limitations outlined above in connection with the agreements establishing international forces, there is little doubt that such agreements do not constitute a transfer of sovereignty, and they can thus be entered into in the future rather freely (by decision of the Government with the consent of Parliament, compare III.2.). The difficulty of defining transfer of sovereignty can be illustrated by the Danish participation in the Schengen Agreement, which, inter alia, allows German and Swedish police to exert police powers in Denmark to a certain extent also in relation to Danish citizens. This is nevertheless not considered as a transfer of sovereignty, as the police actions in question must be the consequence of police actions started in Germany or Sweden respectively. The agreement to allow foreign police to act in Denmark is therefore defined as a "delimitation of geographical sovereignty" which, according to practice, requires only the normal procedure in Article 19 of the Constitution. A further limitation in connection with Danish participation in multinational units must be mentioned. When the electorate voted "no" on the Maastricht Treaty in 1992, the Danish Government and the other EU Governments agreed in Edinburgh in 1993 that Denmark could have four "reservations" to its full participation in the Treaty. The Maastricht Treaty was eventually approved with these reservations by the Danish electorate in a referendum in 1993. One of these reservations concerns the participation in military cooperation within the EU according to Articles 13 (1) and 17 of the EU Treaty. The reservation was confirmed (and even strengthened) in 1997 in Protocol 5 to the Amsterdam Treaty (which gives the reservation the status of a part of the actual treaty). The Protocol states in Article 6 that Denmark is not in any way obliged to take part in the military cooperation of the EU, but that Denmark will not interfere with the decisions of other countries to go forward in this area. As the reservations were part of the basis for the ratification of the Maastricht Treaty in 1993, which required a referendum, the reservations cannot be withdrawn without another referendum. A referendum in 2000 in order to abolish one of the other reservations - the non-participation in the Euro - was unsuccessful in that a majority of the population voted "no". As a result, it will probably be a long time before any Danish politician ventures into another referendum concerning the abolition of any of the reservations, including

264

Jorgen Albrask Jensen

the one on defence cooperation. Recent developments in New York and Washington on 11 September 2001 have again raised the question of a possible referendum on the reservation on participation in EU military operations, as the present state would effectively hinder Danish participation in common EU operations against terrorism. Some Danish political parties have already suggested that the reservation on defence should be put to a referendum immediately. When the defence reservation was agreed upon in 1993, it was based on a widespread fear in Denmark of the establishment of a European Army with the intention of giving the EU the status of a super power in competition with the United States, and thus (at least indirectly) weakening NATO. However, the international situation has changed dramatically since 1993 - especially with the developments in the Balkans - so that European defence cooperation is now not a competitor to the cooperation within NATO, but a supplement which is also desired by the United States. Nevertheless, the Danish reservation still exists, and will probably continue to exist for a fairly long time. This means that Denmark must keep out of any cooperation which takes part under EU auspices, even if - as in most cases the purposes of the actions are thoroughly unobjectionable to the Danish people, and even if Danish forces might have taken part in the operations leading up to such EU activity if these had taken place under e.g. UN auspices. This is clearly an unsatisfying state of affairs which is recognised as being undesirable by a majority of Danish politicians. Until now, however, it has been difficult to agree on which path to follow in order to cope with this problem. Some politicians (mostly critics of the EU) encourage the government to interpret the reservation narrowly so that Denmark could take part in at least some EU operations. Others (mostly from the pro-EU side) argue that the Danish population must be shown the paradoxical consequences of the reservation on defence in order to encourage them to remove it sometime in the future. Therefore, this group interprets the reservation very broadly as preventing any kind of participation in EU military operations (although it does not advocate that the reservation prevents participation in the preparatory discussions in the EU on such operations and on military strategy and matters in general). As far as can be ascertained there are no rules on the relationship of superior to subordinate and on the right to command with respect to soldiers of other forces in Denmark - probably because no foreign troops are stationed in Denmark, except American troops in Greenland, upon whom the Danish authorities exert no influence. The problems arising from foreign soldiers in Denmark will be regulated on a case-by-case basis through agreements between the Danish Government and the Government of the foreign soldiers.

Military Law in Denmark

265

3. Service Regulations and their Legal Nature The administrative institutional orders mentioned above can probably be compared to the internal service regulations in the German armed forces. Such regulations are naturally placed low in the legal hierarchy, in that they must not contravene rules of a higher rank (the Constitution and ordinary statutes). Respecting this, it is, however, possible to create new rights and duties for soldiers by such administrative orders, as long as such regulations agree with the principle of proportionality as outlined above. It is difficult to compare such administrative institutional orders to the regulatory forms used in other jurisdictions. If service regulations are more narrowly defined as permanent written orders, such a type of regulation does in fact exist in the Danish defence system. The Danish word for such regulations is "forholdsordre" (operational order). An example of such a regulation is the 1952 forholdsordre concerning the "military defence in case of attacks on the country and during war-time".

VII. Sanctions 1. Disciplinary Law a. Disciplinary Power The rules on disciplinary law are contained in the MRPL and the administrative orders that are issued with the authorisation of the MRPL. According to Article 39 MRPL, the Minister of Defence issues rules that give disciplinary powers to different groups of superiors (compare VI. 1.) The different disciplinary measures are enumerated in the MRPL - see Articles 29 and 38 and (below at VII.l.d.) b. Relation to Criminal Law In the Danish military law system, the disciplinary and criminal systems are not separated systems. The reason for this is the requirement in Article 37 of the MRPL that states in para. (1) that disciplinary measures can be used only in cases where a criminal act has been committed. The difference between criminal and disciplinary measures is explained in Article 37 (2), which states that disciplinary measures should normally be used instead of minor criminal sentences. It should also be mentioned that the Danish military law system also uses a third group of sanctions which are a mixture of disciplinary and criminal meas-

266

Jorgen Albraek Jensen

ures - "punishment without criminal trial" (Articles 29-36 MRPL). These sanctions are minor sanctions, and they resemble criminal measures in that they are called punishments and are considered as sentences in a criminal case, whereas they resemble disciplinary measures in that they can be administered without trial by the same group of persons who hold the disciplinary powers proper. The Danish system thus consists of three "layers" of measures. The decision on which rules to use (criminal prosecution, punishment without trial, or disciplinary measures) rests on an evaluation of the severity of the criminal offence. The use of any of these measures, however, requires that a criminal offence has been committed. This must be seen in conjunction with the formulation in the MSL of the crimes that are especially relevant in military cases. As mentioned earlier, some of these formulations are very wide and include the general duty in Article 15 to carry out the duties involved with military service. Breach of discipline will often be considered as a breach of Article 15 of the MSL, and is thus a criminal offence. The MSL and the MRPL do not contain any special provisions on whether sanctions from one area are taken into account if the offence is afterwards transferred to one of the other two "layers" of the system, but it follows from general principles of penal law in Denmark that one cannot be punished twice for the same crime, and consequently a former sanction will be taken into account if the same case comes up in another "layer".

c. The Purpose of Disciplinary Law As explained above in b), in principle there is no difference in the purpose of the criminal and disciplinary measures - both have the purpose of punishing a crime and holding the person committing the crime responsible for his or her actions. In reality, however, it is obvious that the administration of disciplinary measures in the Danish defence system also has the primary purpose of preserving efficiency, which is also shown by the very broad formulation of Article 15 MSL.

d. Disciplinary Measures Only the disciplinary measures proper as enumerated in Article 38 of the MRPL will be dealt with in this subsection (whereas the criminal sanctions with and without trial will be dealt with in VII.2). The sanctions mentioned in Article 38 MRPL are: -

special instruction reprimand

Military Law in Denmark -

267

work and special duty in off-duty hours appearance before a superior (used if equipment is not in the required state) extraordinary guard duty or other kinds of military service confinement to barracks (for no more than 14 days (Article 38 (2)) or other limitations on rights transfer to other kinds of duty.

e. Disciplinary Law and the European Convention on Human Rights The disciplinary measures themselves are not considered to be problematic, but the fact that sanctions for criminal offences can be administered without (fair) trial - which is the case both with "punishment without trial" and with the disciplinary measures of Article 38 MRPL - might be a violation of Article 6 of the ECHR. As far as can be ascertained, the problem has not been considered in Danish legal theory, and no actual cases concerning this have arisen. /

The Disciplinary Procedure and Legal Remedies

The procedures concerning disciplinary measures are outlined in Articles 39 to 44 of the MRPL and in the administrative order from 1985 concerning the use of disciplinary measures, which is authorised by Article 39 MRPL. The main element of the administrative order is the establishment of who has the authority to use which disciplinary measures. These rules are very detailed, but in general one can say that only superiors of a relatively high rank are entitled to use disciplinary sanctions. Neither the MRPL nor the administrative order contains detailed provisions on how to handle cases concerning the use of disciplinary measures. However, it follows from general rules on administrative procedure that a disciplinary measure cannot be imposed unless the case has been sufficiently investigated by the person authorised to use the disciplinary measure, and further it follows from Article 20 of the MRPL that in all cases in which there is reasonable suspicion that a crime has been committed, the responsible superior must investigate the case or let the case be investigated. It follows from the general rules on administrative procedure that the soldier suspected of a breach of discipline cannot be disciplined without being heard, but at least at this stage of a disciplinary proceeding there are no formal requirements that the soldier must receive any kind of (legal) assistance. In practice, the spokesman of the soldier's unit would often act as counsellor for the soldier in question. All the disciplinary measures mentioned in Article 38 MRPL can be used against all soldiers below the rank of non-commissioned officers and students

268

Jorgen Albraek Jensen

at military academies, whereas special instruction, reprimand, and transfer to another military duty are the only sanctions that can be used against officers (Article 40). If the disciplinary measure has been imposed by a person who is not a chief tribunal officer, a decision on the administration of disciplinary measures can be referred to the chief tribunal officer (Article 42 MRPL). The decisions of the chief tribunal officer (whether in the first instance or on the basis of a complaint) can be brought to a disciplinary board consisting of three members - a military prosecutor, a spokesman of the same rank as the person on whom the sanction has been imposed, and the immediate superior of the accused (Article 43 (1-3)). The decisions of the disciplinary board can then be brought to a complaint board consisting of a civilian judge, the chief military prosecutor, and an independent (civilian) lawyer (Article 43 (2) and (4)). Complaint to the chief tribunal officer, the disciplinary board, or the complaint board does not postpone the effect of the disciplinary measure, unless otherwise decided by the chief tribunal officer or the chairmen of the complaint authorities (Article 44). It is explicitly stated in Article 37 (3) and in Article 43 (2) that decisions on disciplinary measures cannot be brought to the courts for further control and, also in Article 43 (2), that the decisions of the complaint board cannot be brought before the Minister of Defence. g Representation of the Armed Forces During Disciplinary Proceedings In cases concerning the disciplinary sanctions conducted according to Article 38 MRPL, there is no special office representing the armed forces. h. Measures of Commendation Measures of commendation are not part of the disciplinary system, and there are no formal measures of commendation equivalent to the ones in the German army. The reason for this - perhaps surprising - state of affairs is possibly to be found in the very egalitarian attitude which is prevalent in the Danish perception of Danish society. This egalitarian attitude has positive manifestations in the fact that the distribution of income in Denmark is the most even in all the OECD countries, but also has the negative effect that people who excel in a certain area are often looked upon with a mixture of envy and suspicion, and such people are often told implicitly or explicitly that they are really no better than other people and should in no way consider themselves as such.

Military Law in Denmark

269

2. Criminal Law a. General Issues There is, in Denmark, a special Military Penal Code which was revised to its present state in 1978. The Defence Minister has set up a committee to review both the MSL and the MRPL, but the results of this committee are still pending. Under ordinary circumstances, the MSL is applicable only to military personnel (but in war-time also to civilians employed by the Ministry of Defence - Article 6). The MSL also applies to crimes committed outside Danish territory (Article 2), which means that it is applicable to Danish soldiers taking part in multinational operations. Furthermore, the Military Penal Code is applicable not only in relation to crimes against the Danish defence forces, but also in relation to crimes against forces that are cooperating with Danish defence forces. This is relevant in connection with multinational operations. Military personnel who have finished their term of duty are still covered by the MSL insofar as the relevant crime concerns those military duties which still exist after termination of service (e.g. the duty of secrecy). Persons who are not military personnel can be covered by the Military Penal Code if they participate in the crimes enumerated in the MSL, but only if the relevant provision authorises punishment of more than 4 years of imprisonment, which is only the case for the most severe crimes. Thus, civilians are in fact normally not covered by the MSL even if they participate in crimes violating it (Article 7).

b. Relation to General Criminal Law The general provisions of the General Penal Code also apply to cases of military criminal law, unless otherwise provided for in the MSL (Article 1 MSL). There is no explicit reference in the MSL to the special provisions of the General Penal Code (the provisions covering individual crimes), but there is no doubt that these provisions are still in force in relation to military personnel unless special provisions of the MSL replace the provisions of the General Penal Code. The MSL can therefore be considered to be a supplement to the provisions of the General Penal Code.

c. Military Criminal Courts and their Relation to Civilian Courts All cases concerning the MSL are handled by the ordinary courts according to the rules applying to ordinary criminal cases with a few exceptions that follow from the MRPL (Articles 4-28), as special military courts were abolished

270

J0rgen Albraek Jensen

in 1919. However, the possibility of imposing criminal punishments without trial, mentioned above, could be considered as a kind of special military court. These punishments are a) reprimand, b) fine, and c) up to 30 days of imprisonment. In practice, the administration of such punishments without trial functions more or less on the same lines as ordinary disciplinary cases - with the exceptions that the military prosecutor can also impose these sanctions, that imprisonment can be decided upon only by the military prosecutor, and that the persons who can impose the disciplinary measures are authorised to assign fines of only relatively small amounts. The requirements concerning the investigation of cases leading to punishment without trial are also more explicitly stated than in disciplinary cases (Article 31 MRPL), and - in stark contrast to disciplinary cases - decisions on the imposition of punishment without trial can be brought to the courts (Article 34), with the effect that the execution of the sentence is suspended (Article 34 (1)). d. Special Rules with Respect to the Legal Procedure and the Sanctions System The sanctions system for military crimes has been dealt with several times above. According to Article 11 MSL, the sanctions for violating the MSL are reprimand, fines, or imprisonment. The sanction of reprimand does not exist in the system of the General Penal Code. The punishments without trial have been dealt with already. Most of the general rules concerning legal procedure are also maintained in cases concerning a breach of the MSL. Exceptions are especially relevant with respect to the prosecutor's office (see below at e.). The other exceptions are of minor importance (Articles 4-28 MRPL). These exceptions concern, inter alia, the use of laymen judges which are used more sparsely in military than in civil criminal cases (Article 4), the possibility of court proceedings behind closed doors which is wider in military criminal cases (Article 5), the fact that all violations of the MSL are prosecuted by the public military prosecutor whereas some violations of the General Penal Code are prosecuted by the victim of the crime (Articles 10 and 11), that not only ordinary lawyers but also military personnel can be appointed as defenders in military criminal cases (Article 12), the fact that the military investigative officers have the same competencies in military criminal cases as the police in civil criminal cases and that such competencies are in military criminal cases even broader than in civil cases (Articles 14-17), the fact that the conditions for pre-trial detention are slightly milder in military criminal cases (Articles 18-19), rules on the organisation of the military investigative authorities (Articles 20-22), formal provisions on the possibility of appeal, trial costs, and the execution of jail sentences

Military Law in Denmark

271

(Articles 23-26), and rules concerning investigative courts on board ships, in Greenland, and outside the Danish Realm (Articles 27-28). e. The Military Prosecutor A special military prosecutor's office is created by virtue of Articles 7-9 of the MRPL. In military criminal cases, they fill the functions of the civilian prosecutor in civil criminal cases (the chief of police and the state attorney). The Minister of Defence is the chief of the military prosecutor's office (just as the Minister of Justice is the chief of the ordinary prosecutor's office). A special feature that distinguishes the military prosecutor's office from the ordinary prosecution system is that the military prosecutor can prosecute a case only after consulting with the relevant chief tribunal officer. If the chief tribunal officer disagrees with the military prosecutor, the case can go all the way up the military prosecution system and will in the end be decided by the Minister of Defence (Article 9 MRPL). As mentioned under Vll.l.g. above, the military prosecutor is not involved in disciplinary cases proper, but has an important role in the cases concerning punishment without trial. f . Justification by Superior Orders This problem has been dealt with in V.3. According to Article 9 MSL (which resembles Article 33 of the Rome Statute on the International Criminal Court), a soldier is responsible for committing a crime that is the result of an order from a superior only if he knew that the order was illegal or if it was self-evident that this was so. g. Sanctions for Non-Compliance with International Humanitarian Law According to Article 8 (5), of the General Penal Code, crimes that violate international humanitarian law can be punished in Denmark (whether committed by Danish nationals or foreigners) insofar as it follows from the treaties establishing the international humanitarian law that such crimes must be prosecuted by the countries signing the relevant treaties. This means that some of the most serious crimes against humanitarian law (genocide, torture, etc.) can be prosecuted before Danish courts no matter where the crimes have been committed and no matter what the nationality of the accused is. There are, however, no special rules for Danish soldiers concerning these crimes.

272

J0fgen Albrœk Jensen

h. Ratification of the Rome Statute of the International Criminal Court The Rome Statute on the International Criminal Court was ratified by Denmark in June 2001 when Parliament passed the Act on the International Court. There were no reservations to the ratification.

VIII. Regulations Governing Guard Duties Article 13 General Penal Code regulates the self-defence. According to the MSL, the provision of Article 13 General Penal Code should be used for acts which are necessary in order to ensure obedience and to maintain order. Article 8 MSL entitles the use of force in order to produce obedience and to maintain order, but the extent of the force necessary is, as previously mentioned, regulated by Article 13 General Penal Code. Under the rules of selfdefence, the act in question must be necessary and must not evidently exceed what is justifiable considering the dangerousness of the situation, the person against whom the act is intended, and the importance of providing obedience or maintaining order in the concrete situation. The necessity of the act must also be weighed against the character of the force in question. The use of force regulated in the provision can be exercised by superiors and by guards. In reality, the use of force will often be exercised by subordinates on the order of a superior. Further regulations concerning guard duties are contained in Chapter 7 (Physical Security) of the administrative order issued by the Defence Command concerning Provisions on the Military Security Service. These provisions establish that the security measures taken, including guard duties and the carrying and use of arms and other military equipment, must fulfil minimum requirements that are based on a current risk evaluation of the area in its entirety, the establishment, the building or the room and the documents and equipment situated there. The head of a military establishment is responsible for the carrying out of guard duties at that establishment. More explicit regulations on the matter are laid down in the guard plan that is part of the security plan of the establishment. It is also the responsibility of any commander who provides personnel for guard duty to ensure that the personnel are instructed in the regulations of guard duty of the establishment and in the use of arms.

Military Law in Denmark

273

IX. Legal Reforms with Respect to Multinational Operations and Structures The Defence Act (Act No. 909 of 8 December 1993) was amended in 1993 in order to make explicit the possibility of taking part in multinational operations. The amendment had the form of a new Article 5 (1) and (2), giving explicit authority to the Chief of Defence to delegate his powers to commanders of multinational units under UN or NATO auspices. Up until that time, the possibility of taking part in such operations had rested on the general authorisation of the Government to conduct foreign policy, found in Article 19 of the Constitution (see above at III. 2.). The inclusion of this provision in the Defence Act did not change the content of the law, but could be considered as an important political manifestation of the will of the Danish political authorities and the Danish population to take an active part in such operations. The Defence Act was changed again as late as in 2001 (Act No. 122 of February 2001). The new Act did not contain any substantial changes in comparison to the 1993 Act, but further clarified the different purposes for which the Danish military could be used (see also above at II. 1.-2.). There are no plans at present for further changes in this area. There is no academic discussion with regard to the participation in multinational forces. This is probably a reflection of the very broad acceptance of the necessity of Danish participation in such forces.

X. Select Bibliography 1. Pertinent Legislation a.

Acts

The Danish Constitution [Grundloven] - Act. No. 169 of 5 June 1953 Act on the Purpose, Tasks, and Organisation of the Defence (the Defence Act) Act No. 122 of 27 February 2001 Penal Code - Consolidated Act No. 808 of 14 September 2001 - with later amendments Act on Defence Personnel (the Personnel Act) - Act No. 808 of 5 April 2001 Military Penal Code (MSL) - Consolidated Act No. 642 of 30 September 1987 Administration of Military Justice Act (MRPL) - Consolidated Act No. 643 of 30 September 1987 Act on Cooperation in the Defence - Act No. 244 of 7 June 1967 Liability Compensation Act - Act No. 599 of 8 September 1986 - with later amendments

274 b. Administrative

J0rgen Albnek Jensen Regulations

Operational Order of 6 March 1952, Concerning the Military Defence in Case of Attacks on the Country and During War-Time Administrative Order of 22 January 1985, Concerning the Authority to Impose Punishments without Trial and Disciplinary Measures on Defence Personnel Administrative Order B. 18-1987, Concerning Service Regulations

2. Books and Articles Military law has attracted very little attention within the Danish legal community. Consequently most of the presentation above is based on the primary sources of law. In preparing the presentation, however, some help has been obtained from the following sources: L. F. Biering-Serensen and V. E. Gyde: Militéer straffe- og retsplejelovgivning [Annotated Edition of the Military Penal Code and the Administration of Military Justice Act], 1988 H. Zahle, ed: Danmarks Riges Grundlov - med kommentarer [Annotated Edition of the Danish Constitution], 1999 H. Sorensen: Denmark: From Obligation to Option, in C. Moskos, J. Williams, and D. Segal, eds.: The Postmodern Military - Armed Forces after the Cold War, 2000, pp. 121-136.

Chapter 5 Military Law in France Jörg Gerkrath 1

Table of Contents I. The Historical and Political Background of the French Military Law System 1. The Dignified Role of the Individual Soldier 2. Democratic Control and Rights and Duties of Soldiers a. The French Constitution b. The Government of the Fifth Republic c. French Public Opinion II. Basic Rules Concerning the Use of Armed Force 1. The Mission of the Armed Forces 2. Permissible Operations a. Crisis Management Abroad b. Humanitarian Aid at Home and Abroad c. Combined Operations with Civilian Aid Organisations d. Cooperation between the Armed Forces and Other Governmental Authorities e. States of Emergency at Home f. Natural Disasters or Humanitarian Catastrophes at Home g. Evacuation of a State's Nationals h. Use of the Armed Forces in Other Cases 3. Limitations on Operations Undertaken Jointly with the Armed Forces of Another Country 4. Constitutional Powers a. The Position of the Head of State b. The Powers of the Government c. The Participation of Parliament in the Decision to Deploy the Armed Forces d. The Functions of the Minister of Defence e. The Role of the Military Leadership 5. Parliamentary Control a. The Parliament's Powers to Control the Armed Forces b. Special Forms of Parliamentary Control over the Military, Ombudspersons c. Court of Auditors and Comparable Institutions 1

Professor of Law, University of Avignon.

277 277 279 279 282 284 285 285 287 288 288 288 288 289 290 290 291 292 292 292 293 294 296 297 298 298 300 300

276

Jörg Gerkrath

III. The Structure of the Armed Forces 1. The Armed Forces and their Administration 2. Involvement of the Civilian Administration in the Process of Procurement of Material and Supplies IV. Soldiers'Rights and Duties 1. Restrictions on Fundamental Rights of Soldiers a. General Aspects b. Political Neutrality of Soldiers c. Freedom of Association d. Conscientious Objection e. Equal Treatment f. Other Fundamental Rights and their Restrictions 2. Legal Obligations of Soldiers 3. The Power of Command and the Duty to Obey 4. Social Rights of Soldiers and their Families 5. Rules Governing Working Time a. Working Time and Compensation for Overtime b. Holidays and Special Leave 6. Legal Remedies, in Particular Rights to File a Complaint 7. Rights of Institutional Representation V. The Relationship of the Superior to Subordinate Personnel 1. Legal Rules Concerning the Relationship between Superior and Subordinate 2. Subordination of Soldiers to the Command of a Superior of Foreign Armed Forces 3. Service Regulations and their Legal Nature VI. Sanctions 1. Disciplinary Law a. Disciplinary Power b. Criminal Law and Disciplinary Law c. The Purpose of Disciplinary Law d. Disciplinary Measures e. Disciplinary Law and the European Convention on Human Rights . . f. The Disciplinary Procedure and Legal Remedies g. Representation of the Armed Forces during Disciplinary Proceedings h. Measures of Commendation 2. Military Criminal Law a. General Issues b. Relation to General Criminal Law c. Military Criminal Courts d. Relationship between Civilian and Military Courts e. Special Rules with respect to the Legal Procedure and the Sanctions System f. The Military Prosecutor g. Justification by Superior Orders h. Sanctions for Non-Compliance with International Humanitarian Law i. Ratification of the Rome Statute of the International Criminal Court VII. Regulations Governing Guard Duties 1. Powers of Guards towards Military Personnel as well as towards Civilians 2. Performance of Guard Duties by Soldiers of Foreign Armed Forces . . .

300 300 301 301 301 301 302 304 305 305 306 307 309 310 312 312 313 313 315 316 316 317 318 318 318 318 319 320 320 321 321 322 323 323 323 324 324 325 325 325 325 326 326 327 328 329

Military Law in France 3. The Rules Concerning the Carrying and Use of Arms and other Military Equipment VIII. Legal Reforms with Respect to Multinational Operations and Structures . . 1. Pertinent Legislation 2. Probability of Future Reforms 3. Academic Discussion IX. Select Bibliography 1. Pertinent Legislation a. Main Statutes b. Important Decrees 2. Books and Articles a. Books b. Collections and Textbooks c. Articles

277

329 330 330 331 332 332 332 332 333 333 333 334 334

I. The Historical and Political Background of the French Military Law System The historical and political circumstances which have influenced the French military law system were very different from those in Germany. Therefore, issues such as democratic accountability of the armed forces or the dignified role of the individual soldier did not unfold in the same way. Obviously, France is not only a nation with a long history, but also a nation with an old and strong military tradition. The institution of a standing army was decided upon in 1439 by a royal ordinance decreed by Charles VII, called "les compagnies d'ordonnancé".

1. The Dignified Role of the Individual Soldier The link between the French nation and its armed forces has traditionally been very close, at least since the French Revolution. Article 12 of the Declaration of 1789 declares that: "The guarantee of the rights of humans and citizens requires a public force: this force is therefore established for the advantage of all, and not for the particular utility of those to whom it is attributed". Furthermore, according to the Constitution from 1848, "The public force is in essence obedient; no armed corps may deliberate". The principle of the subordination of the army to the civilian authorities was indeed considered to be fundamental. Restrictions on the rights of political expression of soldiers in the field have consequently been accepted as necessary. The armed forces are meant to exercise their profession without discussion; therefore, they are commonly known in France as "la grande muette".

278

Jörg Gerkrath

But, as the army is also considered to be an emanation of the nation, the individual soldier is presently considered to be a "citizen serving under the flag".2 The 1972 General Statute of the Military indicates, furthermore, that "military status requires under all circumstances discipline, loyalty and a spirit of sacrifice". As a result, the duties which come with this status therefore "merit the respect of all citizens and the consideration of the nation". The strongest link between the nation and its armed forces has been conscription, which was established in 1905 and ended effectively on 30 November 2001.3 The transformation of the French armed forces into a fully professional army and the redefinition of its role was initiated by the "Livre blanc sur la défense" of 1994. That White Paper also implies important changes with regard to the link between the nation and its armed forces. The need for better communication from 'Ία grande muette" appears to be decisive in this context,4 and the need to recognise a broader right of expression for the military is underlined by an increasing number of observers.5 As the military of a former colonial power which retains strong political interests, especially throughout "la francophonie" and on the African continent, the French armed forces have developed what may be called a certain "culture of external intervention". This "culture of French intervention" abroad is still maintained and facilitates to some extent French participation within multinational operations.6 Until very recently, the role of the French army abroad has not been a subject of broad and critical public discussion. The " a f f a i r e Aussaresses" which occurred in spring 2001, changed this situation to some extent. This affair concerned a high ranking general who recognised in a book that the French armed forces used torture in a generalised manner during the Algerian war. Hence, French newspapers discussed the need for stronger control over the armed forces. The generalised use of torture by members of the armed forces during the military operations in Algeria might also bring about a broader discussion

2

See Règlement général de discipline dans les armées, Arts. 1-3: "Cette discipline repose sur l'adhésion consciente du citoyen servant sous les drapeaux et le respect de sa dignité et de ses droits." 3 The statute from 28 October 1997, which puts an end to conscription, specifies, however, that it could be reestablished if the circumstances so required. 4 Regarding this point, see B. Mignot, Lien armée-nation et expression des militaires, (1998) Défense nationale, p. 82. 5

See in particular Assemblée Nationale, Rapport d'information No. 2490 du 22 juin 2000, présenté par Bernard Grasset et Charles Cova sur les actions destinés à renforcer le lien entre la Nation et son Armée. 6

See T. Paulmier, L'armée française et les opérations de maintien de la Paix (Paris, 1997).

Military Law in France

279

about the role of the armed forces and the individual soldier. A recently published PhD thesis (in History), which deals in detail with this period of recent French history, has contributed to the deepening of this public debate.7 However, no specific political proposal has been issued, and a majority within the population and the Parliament seems to consider these events as being linked to a very exceptional context.

2. Democratic Control and Rights and Duties of Soldiers a. The French

Constitution

Unlike the German Constitution, the French Constitution from 1958 does not deal with the role of the armed forces either in terms of democratic legitimacy or in terms of soldiers' rights. With regard to external operations, French constitutional law might even be considered simply non-existent.8 French constitutional law does, however, refer to a very traditional (and somewhat anachronistic) vision of national sovereignty which still exercises a strong influence on French politics, law, and thinking. This dogma, which may appear to external observers as being obsolete, also affects the question of military co-operation in the broadest sense and should therefore be kept in mind. Many French scholars stick to the concept of sovereignty as it was articulated by Jean Bodin in the 16th century, and developed by Jean-Jacques Rousseau about two hundred years later as a principle of democratic government. Presently, French constitutional law still contains strong references to the principle of national sovereignty. These references result from Article 3 of the Declaration of 1789, from Section 15 of the preamble of the Constitution of 1946,9 from the preamble of the Constitution of 1958,10 and finally from Article 3 of the Constitution of 1958 which says: "National sovereignty shall belong to the people, who shall exercise it through their representatives and by means of referendum. No section of the people nor any individual may arrogate to itself, or to himself, the exercise thereof".

7

See R. Branche, La torture de l'armée pendant la guerre d'Algérie (Paris, 2001), p. 474.

8

See O. Gohin, Constitution et défense en droit français, (2002) 202 Revue de la Gendarmerie nationale, pp. 43-48. 9

"France consents to limitations of sovereignty necessary for the organisation and the defence of peace".

10 "The French people solemnly proclaim their attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946".

280

Jörg Gerkrath

This conception of sovereignty naturally influences the French position with regard to any kind of international co-operation and the question of transferrai of sovereign rights to international institutions. It also plays an important function in the case law of the French Conseil constitutionnel. In one of its earlier decisions, the Conseil constitutionnel made a distinction between "limitations of sovereignty", which it considered to be allowed, and "transfer of sovereignty" which it held to be contrary to the Constitution. 11 Strongly criticised, this distinction was decisively abandoned by a decision in April 1992, known as "Maastricht l". 12 In this decision, the Conseil constitutionnel inaugurated a new approach based on "transfer of competences". Since then, it has considered that: "the respect of national sovereignty does not prevent France from concluding, on the basis of the dispositions of the preamble from 1946 and subject to reciprocity, international agreements in order to participate in the creation or in the development of a permanent international organisation having legal personality and being invested with decisional powers by virtue of transfer of competences consented to by the Member States". When it is called to verify, according to Article 54 of the Constitution, whether "an international commitment contains a clause contrary to the Constitution", the Conseil constitutionnel now applies a three-step test. An agreement will indeed be to be held contrary to the Constitution not only if it contains a clause which is incompatible with the Constitution, but also if it affects the constitutionally guaranteed rights or freedoms, or if it infringes on the "essential conditions of the exercise of national sovereignty".13 The sense of this apparently rogue concept has been explained by the Conseil: it refers to the duty of the state to "ensure respect for the institutions of the Republic, the continuity of the nation's existence, and the guarantee of the citizens' rights and freedoms". 14 The Conseil also indicated that the transferrai of competences may affect the "essential conditions of the exercise of national sovereignty" either by their "nature" or because of the "modalities" which are chosen to accomplish them.15

11

Décision No. 76-71 DC, 29 et 30 décembre 1976.

12

Décision No. 92-308 DC, Traité sur l'Union européenne.

13 See the most recent Décision No. 89-408 DC from 22 January 1999, Traité portant statut de la Cour pénale internationale. See also J.-F. Flauss, "Rapport français", in J. Schwarze (ed.), The Birth of a European Constitutional Order, The Interaction of National and European Constitutional Law (Baden-Baden, 2001), at p. 48. 14

See décision No. 91-294 DC, 25 July 1991.

15

Décision No. 97-394 DC, 31 December 1997, Treaty of Amsterdam.

Military Law in France

281

Thus, the respect of national sovereignty may imply a certain number of requirements, e.g. with regard to participation within multinational units or to the presence of foreign soldiers on French territory. Unlike the German Constitution, the French Constitution does not contain provisions dealing directly with the role of the armed forces, their mission, or the rights and duties of the soldiers. The French concept of defence is defined in the ordinance of 7 January 1959 "portant organisation générale de la défense" which is an act adopted by the executive, but which has legislative value because of its ratification by Parliament (according to former Article 92 of the Constitution). This ordinance determines the basic principles of organisation of defence, leaving the determination of any more detailed description of the role of the armed forces to the executive power. According to a policy definition from the Ministry of Foreign Affairs, the French conception of defence is a comprehensive one, setting three goals for the country's defence: 1) To defend France's vital interests, which are defined by the President of the Republic and include particularly its people, its territory, and the freedom to exercise its sovereignty. In this regard, the 1958 Constitution assigns the role of guarantor of territorial integrity to the President of the Republic (Article 5) and makes him Commander-in-Chief of the armed forces (Article 15). At the same time, France must also protect its strategic interests at the international level whilst contributing to conflict prevention, keeping and restoring peace, and ensuring respect for international law and democratic values in the world. In these areas, France's status as a permanent member of the United Nations Security Council gives it both prerogatives and responsibilities. 2) To work for the development of the European enterprise and the stability of the European continent. France opted for this policy at the end of World War II by choosing to participate actively in the Western European Union (WEU), the North Atlantic Treaty Organisation (NATO), and the Conference on Security and Cooperation in Europe (CSCE), which in December 1994 became the Organisation for Security and Cooperation in Europe (OSCE). 3) To implement a comprehensive concept of defence which is not limited to military concerns. Indeed, a country's security and stability are dependent not only on its armed forces and police, but also on its social organisation, educational system, and social cohesion. The concept of defence is, de facto, inextricably linked with that of the nation. The sécurité civile (emergency services dealing with national disasters, bomb disposal, etc.) protect the population and maintain public order and thus the continuity of the state. They are also responsible for preventing and dealing with major natural and technological hazards and the security of sensitive installations and networks. Lastly, they ensure the proper distribution of resources in times of crisis.

282

Jörg Gerkrath

b. The Government of the Fifth Republic With regard to the government of the V. Republic, one has to distinguish between four periods (1958 to 1962, 1962 to 1986, 1986 to 2002 and after 2002) and two political situations which have occurred in practice since 1986 (concordance of political majorities and "cohabitation"). Before 1962, the President of the Republic was not directly elected. The principle of direct and universal elections of the President was introduced by a strongly criticised constitution-amending referendum of 28 October 1962, which had been held at de Gaulle's request (according to the procedure of Article 11 which normally applies only to statutes). This change of course altered the nature of the political system established by the Constitution in 1958. The ambiguity introduced by the 1962 amendment has often been underlined by legal experts. Georges Vedel, an outstanding specialist of French constitutional law, contended that there are now two (incompatible) constitutions: one from 1958 and the second from 1962.16 The referendum of 1962 could be considered as the first step away from a parliamentary system (according to the wording of the Constitution) and towards a presidential system (in practice). From 1962 to 1986, there were always concordant political majorities. Hence, the President, whose position had been strengthened by the strong sense of democratic legitimacy conferred upon him by direct election, also received political support from "his" majority in Parliament. This situation affected the function of the Prime Minister who was degraded to play the role of a "fuse" which the President could replace whenever he wanted. It also altered the distribution of competences in practice. In 1981 there was the first "alternance" with the socialist François Mitterand succeeding the conservative Valéry Giscard d'Estaing. This event did not, however, alter the political practice. Since 1986, the V. Republic has experienced a very different political situation. During three periods, a new configuration has appeared. This has been called "cohabitation", because a President and a Prime Minister, who have been elected by opposite political majorities, will have to live together ("cohabiter"). The first instances appeared to be exceptional (1986-1988, President Mitterand with Jacques Chirac and 1993-1995 with Edouard Balladur), occurring only for a short period at the end of the presidential mandate of seven years. However, the situation occurred again in 1997 when President Chirac decided to dissolve the National Assembly after only two years in office. Since then, "cohabitation" seems to have become a more normal situation. As a result, during periods of cohabitation the Constitution is interpreted in a way which puts the accent on its parliamentary elements. Accordingly, the French political system cannot 16

See G. Vedel, Les deux constitutions, Le Monde, 10 January 1973.

Military Law in France

283

really be qualified as "presidential". It is more or less "parliamentary", and at the most "semi-presidential". Thus, French defence policy partially depends on whether there is political "cohabitation" or a situation of concordant majorities. In 1995, political change occurred when fourteen years of socialist rule came to an end with the Presidential victory of centre-right RPR leader Jacques Chirac. With President and Government once more of the same political party, Chirac and his defence minister Charles Millón established a Strategic Committee in July 1995 to undertake a second major review of defence policy (the first was in 1972). The review was completed and its findings made public in February 1996, when Chirac unveiled Une Défense Nouvelle 1997-2015, which some considered the most radical shake-up of defence policy since de Gaulle. The package included the phased ending of conscription by 2002, ending more than 200 years of policy continuity, and a far-reaching restructuring and down-sizing of the French armed forces. It included also the reorganisation of the armed forces around a "new model army," centred on four missions: dissuasion - based on the nuclear deterrent; prevention - the avoidance and defusing of threats to national interests through intelligence and force prepositioning, power projection - the capacity to project forces of up to 50-60,000 personnel into theatres around the world for purposes from Gulf War-type scenarios to peace-keeping and humanitarian intervention, and protection - the defence of France against terrorism, drugs, and so forth. After an initial honeymoon, Chirac's presidency fell into rapid decline, and in the spring of 1997 a new socialist government under Lionel Jospin was elected, opening the Fifth Republic's third term of "cohabitation". Ordinarily, Presidential dominance would be expected in defence matters, but the weakness and drift of Chirac (resulting inter alia from the disintegration of his personal power base, divisions in his political party, political scandals, and low public approval ratings) ceded considerable latitude in defence matters to Jospin's Government and Alain Richard, Minister of Defence. Accordingly, the annual defence budget in 1997 trimmed the spending projected by the 1997-2002 Loi de programmation militaire. There was only a minimal consensus on important military issues, which made it difficult to implement the reform projects which had already been decided upon. 17 Thus, a project of a new programmatic military statute (loi de programmation militaire) for the period 2003-2008 which had been prepared by the govern-

17 Compare F. Laffaille, Défense nationale et cohabitation (juin-août 1997), (1997) 3 Droit et Défense, p. 32.

284

Jörg Gerkrath

ment of Lionel Jospin, was adopted within the Council of Ministers on 31 July 2001, but not immediately presented to the Parliament.18 The Constitution of 1958 having been modified by referendum of 24 September 2000, the duration of the presidential mandate was shortened from 7 ("septennat") to 5 years ("quinquennat") in order to make it correspond with the mandate of the National Assembly. The first test of this new system, which certain observers already call the "VI. Republic", have been the elections (presidential and parliamentary) in spring 2002. After long discussion, the timetable for these elections had been modified so that the election of the President (April-May 2002) preceded (as it usually did) the election of the National Assembly (June 2002), in order to maintain the supremacy of the presidential election. c. French Public Opinion There is a broad consensus among French citizens of all political inclinations about the role of the armed forces. This defence "consensus" flows from structural elements such as France's geography and from French history - particularly the French Revolution and its aftermath, which forged a close bond between the army and the people, the French Empire, which 'globalised' French interests, and the pattern of invasion between 1814 and 1940 which seared a highly 'realist' and state-centred concept of defence into the national strategic culture. It flows also from the decisive intervention of General Charles de Gaulle who, through the Constitution of the Fifth Republic and through the force of his ideas, established from the late 1950s a "Gaullist" framework of thinking about defence, around which the "consensus" has subsequently accreted.19 One can still observe the adherence to Gaullism in contemporary defence policy - for example in the maintenance of an independent nuclear deterrent, non-integration with and distance from NATO, a global military role commensurate with French rang and grandeur, and near self-sufficiency in arms procurement.

18

See J. Isnard, Déception et amertume dans les armées françaises, Le Monde, 8 February 2002, p. 14. The preparation of this project continues now, after the re-election of Jacques Chirac, under the supervision of the new Minister of Defence, Michèle Alliot-Marie, see J. Isnard, La programmation militaire remise en chantier, Le Monde, 4 June 2002, p. 17. 19 See S. Gregory, Vers une défense nouvelle: Defence Policy Planning and Review in France, (1998) 29 Disarmament Diplomacy, .

Military Law in France

285

Recent developments, especially the transition to a fully professional army will certainly influence the public opinion of the French armed forces, although no sharp break seems perceptible yet. 20 A survey illustrates the position of French public opinion. 59% of the French have pronounced themselves in favour of a common European defence. 74% of the French approve of the French military engagement in external operations in general. The support is even stronger when the objective is to assist a population in danger (90%), or to react to an aggression directed against a NATO or EU member state (76%). The same survey also shows, however, that 48 % of the French believe that such an engagement should result only from a vote of Parliament, against 42% in favour of the Presidential prerogative. Finally, the survey shows that there is a lack of information on the exact role of the French Parliament. 51 % of French citizens simply do not know whether the Parliament must be consulted or not. 21

II. Basic Rules Concerning the Use of Armed Force 1. The Mission of the Armed Forces Compared to the German Constitution from 1949, the French Constitution from 4 October 1958, appears rather laconic with regard to the role or the missions of the armed forces. The text of the Constitution adopted in 1958 does not contain the slightest mention of this subject. One has to go back to the "Déclation des droits de l'homme et du citoyen" from 1789 and to the preamble of the Constitution of 1946 in order to find references to the role of the armed forces. As the preamble of 1958 refers explicitly to these two texts, they are still part of positive French constitutional law. Together with a number of unwritten principles recognised by Acts of Parliament since 1905 ("Les principes fondamentaux reconnus par les Lois de la République"), and the written text from 1958, they form what is known in France as the "bloc de constitutionnalité." This "bloc" contains all rules of constitutional value (written and unwritten) to which the Conseil constitutionnel refers when exercising its competence of judicial review. A first mention of the role of the armed forces is to be found in Article 12 of the 1789 Declaration, which says that the protection of individual rights re20

See B. Boene & M. L. Martin, France: In the Throes of Epoch-Making Change, in Ch. C. Moskos (eds.), The Postmodern Military (Oxford, 2000), pp. 51 et seqq. 21

Compare Assemblée Nationale, Rapport d'information No. 2185 du 22 février 2000, présenté par Paul Quilés sur "les Français, la Défense nationale et le rôle du Parlement".

286

Jörg Gerkrath

quires a "public force," and that this force is "established for the advantage of all and not for the utility of those to whom it is attributed." This was of course an important change brought about by the French Revolution to establish a close link between the nation and its army. A decree from 6 December 1790, defined the public force as being "the junction of the forces of all the citizens". 22 A second indication derives from Section 15 of the preamble from 1946. The second sentence of Section 15 establishes that the "French Republic shall not enter into war for reasons of conquest, and shall never use its armed forces against the freedom of any people." This Section 15 is the only constitutional rule which limits the use of the French armed forces. In practice, however, it has never been referred to. In any case, there is no possibility of judicial review of a decision to engage the armed forces abroad. The Conseil constitutionnel has indeed only a very limited jurisdiction compared to the German Bundesverfassungsgerich t. Besides these two rules, which do not fix precise limits for the use of the armed forces nor put obligations on the institutions in charge of defence policy, the French Constitution contains some other articles dealing with the allocation of powers and the responsibility for defence policy. The ordinance No. 59-147 from 7 January 1959 (Article 1), defines the "objective" of defence in very general terms: "to ensure at all times, under any circumstances, and against any form of aggression, the security and the integrity of the territory as well as the life of the population". Further principles of defence are determined by the authorities as invested by the Constitution. The missions of the French armed forces as defined by the French Ministry of Defence according to the 1994 White Paper 23 are the following: To protect the vital interests of France against all forms of aggression: by guaranteeing France's territorial integrity, the freedom of its citizens, and the Nation's sovereignty and means of development, and maintaining the credibility of deterrence through the interplay of nuclear and conventional resources; by contributing to the maintenance of the continuity and freedom of action of institutions and the government under all circumstances, faced with all direct or

22

See also the 1791 Constitution, Art. 107: "The general armed forces of the Republic are composed of the entire people." 23

In March 1994 the Government of Balladur published the second Livre Blanc sur la Défense of the Fifth Republic (the first was published in 1972). The Livre Blanc is a detailed and extensive document which describes at length the French view of the new geostrategic context and the threats therein, the objectives of French defence policy, French defence resources, and the relationship between defence and society. It is addressed primarily to the French people and is a descriptive rather than prescriptive document. See Livre blanc sur la défense, La documentation française March 1994.

Military Law in France

287

indirect threats; by defending and protecting the national territory, airspace, and waters from a variety of threats including terrorism. To contribute to the security and defence of Europe and the Mediterranean, with the prospect of the ultimate implementation of a common European defence policy: by preventing the development of any threat, and by contributing to stability in Europe and its surroundings, particularly in the Mediterranean and Middle East; by helping to prevent or solve crises, particularly by participating in military actions, of varied nature, intensity, and duration; by encouraging the development of a European defence identity, and by strengthening cooperation and exchange with our partners in the Western European Union, in all fields; by participating in the defence of Europe, within the North Atlantic Alliance, in the event of aggression. To contribute to actions conducive to peace and the respect of international law: by asserting France's presence in the world, by ensuring that its sovereignty is respected wherever it is exercised, and by protecting its citizens and its interests, particularly its sources of supply; by honouring its defence and cooperation agreements; by being ready to participate in peace-keeping and law enforcement operations, whether under the auspices of the United Nations or other competent international organisations; by participating in humanitarian actions as requested by international organisations or at the request of the states and countries concerned. To carry out public service tasks, particularly by strengthening means and organisations normally responsible for the civil defence of the country: by participating in the protection of civilian organisations, installations, or facilities necessary for maintaining activities essential to the life and defence of the population; by taking preventive measures for civil protection and rescue operations at the request of competent authorities, in order to protect the population under all circumstances (natural or technological disasters, major risks); by participating in the protection of public authorities and public services when necessary; by participating in action taken by the State at sea, whether it be prevention, policing, or lifesaving; by participating in assistance, search, and lifesaving operations for aircraft in distress."

2. Permissible Operations Under the French Constitution and more generally under French military law, there is a very wide range of operations which can be carried out legally by the armed forces. There are virtually no general or special prohibitions expressed by law, but rather rules of competence and formal requirements to satisfy in order to have such operations conducted by the armed forces.

288

Jörg Gerkrath

a. Crisis Management Abroad Crisis management abroad is certainly permissible under French law. There are even special "pre-positioned forces" on the territory of foreign states such as Djibouti (3013 soldiers), Senegal (1163), Chad (971), Gabon (583), and Ivory Coast (572), which can carry out such operations. There are also, of course, units of the Foreign Legion stationed abroad. b. Humanitarian Aid at Home and Abroad Within the context of external operations the French armed forces carry out what they call "actions civilo-militaires" (ACM). According to a directive from 11 July 1997, these ACM are actions carried out by the armed forces engaged in a theatre. They make it possible to take into account the interaction between these forces and their civilian environment and to facilitate the realisation of civilian and military objectives. These actions may consist of three types of missions: missions to the benefit of the forces, missions to the benefit of the civilian environment, and humanitarian missions. In Kosovo, for instance, these ACM consist of delivering medical supplies to a hospital in Kumanovo or renovating schools in Pazoma and Vucitrn.24 c. Combined Operations with Civilian Aid Organisations The above mentioned ACM can be carried out in co-operation with civilian aid organisations. d. Cooperation between the Armed Forces and Other Governmental Authorities The French armed forces include three traditional components (Army, Navy and Air Force) and the National Gendarmerie, which is a constituent part of the armed forces (Article 1 of Decree No. 91-673, from 14 July 1991). In peace time, the gendarmerie fulfils police tasks (especially in rural regions) and maintenance of public order. It can, however, also take part in the military defence of the territory. Co-operation between the armed forces and other governmental authorities is possible in the field of "civil defence" as defined by the ordinance of 1959, reaction to natural catastrophes, or the preservation of public order. Co-operation between the armed forces and the civilian authorities falls under the res24

A complete list is available on the website of the armed forces headquarters (EMA). See

Military Law in France

289

ponsibility of the Préfets (formerly called Commissaires de la République). They represent the state on the level of the defence zones, regions, and departments. Decree No. 83-321 of 20 April 1983 "relatif aux pouvoirs des commissaires de la République en matière de défense de caractère non militaire" determines the powers of the Préfets. One particular field of co-operation concerns the fight against terrorism. A ministerial instruction from 7 February 1978, elaborated by the SGDN (Sécretariat général de la défense nationale) on the basis of the ordinance of 7 January 1959, established the "plan Vigipirate" in order to prevent terrorist attacks. The plan is classified as confidential and was updated in 1995 and 2000. The decision on whether to implement this "plan Vigipirate" belongs to the Prime Minister. Its implementation is based on instructions delivered by the Minister of Home Affairs to the Préfets of the seven defence zones and to the "Préfets de région" and the "Préfets de département". In practice, the armed forces would be closely associated with the police in order to strengthen the surveillance of all public establishments. e. States of Emergency at Home Concerning states of emergency at home, three main situations must be distinguished in France: According to Article 16 of the Constitution: "Where the institutions of the Republic, the independence of the Nation, the integrity of its territory or the fulfilment of its international commitments are under serious and immediate threat, and where the proper functioning of the constitutional public authorities is interrupted, the President of the Republic shall take the measures required by these circumstances, after formally consulting the Prime Minister, the Presidents of the Assemblies, and the Constitutional Council." This article was applied once, for 5 months in 1961, following the Algeria crisis. It gives rise to a kind of constitutional dictatorship and is therefore strongly criticised. Article 36 of the Constitution declares that "Martial law (état de siège) shall be decreed in the Council of Ministers. Its extension beyond twelve days may be authorised only by Parliament." The proclamation of such an "état de siège" is governed by three statutes (9 August 1849, 3 April 1878, and 27 April 1916). Its effect is that the powers of the civilian authorities in the field of police and public order will be transferred to the military authorities. The legality of the declaration of "état de siège" and the measures taken by the military authorities is controlled by the administrative courts. There must be "an imminent peril resulting from a foreign war or an armed rebellion" (Article 1 Statute from 3 April 1878).

290

Jörg Gerkrath

The State of Urgency (état d'urgence) is regulated by a statute from 3 April 1955, modified by ordinance No. 60-372 from 15 April 1960. Like the "état de siège," it is established by a decree taken in the Council of Ministers, and its prorogation extension 12 days requires authorisation by Parliament. There is no general transfer of powers to the military authorities, but delegations are possible. These three different situations, which are governed by the constitution or by statutes, can be placed within the wider theory of "circonstances exceptionnelles". The existence of such exceptional circumstances is determined by the judge. In the case of exceptional circumstances, the normal rules on competence as well as the requirements on form and substance of administrative acts are modified.25 The existence of any of these exceptional situations does not imply, however, the authorisation to use the armed forces. The decision on this question is still separate, but can be easier to push through under exceptional circumstances than under normal circumstances. /

Natural Disasters or Humanitarian Catastrophes at Home

These situations are certainly part of the concept of "civil defence" defined by ordinance No. 59-147, Article 17. The armed forces are for instance permanently involved in the plan POLMAR, executing control missions in order to prevent pollution on the French coast line. After the shipwreck of the Erika, an oil tanker which sank at the end of 1999 near to the coast of Bretagne, the French armed forces engaged over 2000 soldiers on the sea and on the beach in order to assist the population. g. Evacuation of a State's Nationals French troops have conducted several OPEX (opérations extérieures) in the past in order to rescue or evacuate foreign nationals, either on their own (Chad in January 1992, Central African Republic in January 1997), or together with Belgian troops for instance in Zaire (September 1991, January 1993 and April 1997), in Rwanda and Burundi (April 1994), and in Côte d'Ivoire (2002)26.

25

See Conseil d' État, 28 June 1918; Heyriès, Les grands arrêts administratifs 1999), p. 193.

26

(Paris,

For a list of such operations, see Moskos, "The Postmodern Military" supra n.20, pp. 279 et seqq.

Military Law in France

291

h. Use of the Armed Forces in Other Cases. According to Article 17 of the ordinance of 7 January 1959: the Minister of Home Affairs receives - for the development and the engagement of his means - the support of the services and the infrastructure of the armed forces and, especially in order to preserve the public order, if necessary the assistance of the military forces. Thus, in France, the armed forces may contribute to what the ordinance from 1959 calls "civil defence". The armed forces will be engaged on the basis of a simple demand emanating from the civilian authorities for any provision of services which do not concern the maintenance of public order (e.g: in the case of natural disasters). In this case, general plans on the organisation of rescue (ORSEC) will apply, and these demands for assistance are governed by a simple inter-ministerial instruction from 18 January 1984.27 In the field of upkeep of public order, there are stronger requirements to fulfil. The armed forces may intervene only upon a formal requisition following the rules laid down by a statute from 1791 and Decree No. 95-573 from 2 May 1995, and explained by an inter-ministerial instruction from 9 May 1995.28 According to Article 2 of this decree, the armed forces may take part in the maintenance of public order only if legally requested to do so. A requisition for this purpose may be general, particular, or complementary, depending on whether the use of coercion or weapons is requested. Use of heavy weapons requires a special authorisation by the Prime Minister, an exception being made for the weapons of the Gendarmerie. An inter-ministerial instruction No. 500/SGDN/MTS/OTP of 9 May 1995 "relative à la participation des forces armées au maintien de l'ordre" governs the use of arms by the armed forces in the field of upkeep of public order (Articles 41-44). In the case of "attroupements" (riots or turmoil) according to Article 431-3 NCP, the armed forces may exercise a kind of "collective" right of legitimate defence. The lawfulness of the use of force is governed by the ordinary penal law (Articles 122-4 to 122-7 NCP).

27

Regarding this issue see M. Watin-Augouard, Sécurité intérieure: pluralité et complémentarité des forces, (1997) 4 Droit et Défense, p. 15. 28

Instruction interministérielle No. 500/SGDN/MPS/OTP du 9 mai 1995 relative à la participation des forces armées au maintien de l'ordre.

292

Jörg Gerkrath

3. Limitations on Operations Undertaken Jointly with the Armed Forces of Another Country There are no specific legal limitations in this field, as long as such operations are not carried out with an intention of conquest or against the freedom of any people (Section 15 of the Preamble of the Constitution of 1946).

4. Constitutional Powers Though one might consider French constitutional law about the armed forces to be rather cursory, there are several constitutional rules concerning the distribution of competences among the organs of the state with regard to the regulation of defence. The distribution of competences among Parliament, the President, and the Prime Minister in the field of defence is not organised in a fully satisfying manner by the constitution. Especially the division of powers between the two main actors in the Government depends in practice on the political situation (cohabitation or not). Furthermore, the French Parliament appears to play a secondary role, being merely consulted by the Prime Minister without having the possibility to vote formally on the engagement of French armed forces in most of the cases. a. The Position of the Head of State According to the Constitution, "[t]he President of the Republic (...) shall be the guarantor of national independence, territorial integrity, and observance of treaties" (Article 5). He shall make appointments to the civil and military posts of the State (Article 13), and he "shall be Commander-in-Chief of the Armed Forces. He shall preside over the higher national defence councils and committees" (Article 15). Thus, according to the text, the President of the Republic is to be considered as the supreme head of defence policy. He is responsible, furthermore, for ensuring that national independence and the country's integrity are maintained, and that treaties are respected. He is the Commander-in-Chief of the Armed Forces, and is the only person empowered to give the order to engage nuclear forces (Decree No. 96-520 du 12 June 1996 portant détermination des responsabilités concernant les forces nucléaires). The main defence decisions are made by the President of the Republic in councils chaired by him (Council of Ministers, Council of Defence, and Restricted Defence Committee). His competences defined by Articles 5, 13 and 15 do not belong, however, to his "competences proper". According to Article 19 of the Constitution they are

Military Law in France

293

submitted to countersignature by the Prime Minister and, eventually, the responsible ministers. In fact, the question whether the President, as chief of the armed forces, could decide alone on their engagement depends more on the political situation than on the Constitution. The powers defined by Article 16 and the engagement of nuclear forces are special cases. b. The Powers of the

Government

The Government implements measures decided upon in councils and committees chaired by the President of the Republic. Thus, its role seems to be subordinate. However, Article 20 provides that "The Government shall determine and conduct the policy of the Nation. It shall have at its disposal the civil service and the armed forces." The Prime Minister, responsible for National Defence (Article 21 of the Constitution), controls how defence measures are implemented; he does this through the SGDN (Secretariat-General for National Defence). The SGDN is placed under the authority of the Prime Minister, but its main function is to ensure a permanent and close link between the President and the Government. Each minister is responsible for the preparation and execution of defence measures to be carried out by his department; a senior defence civil servant assists him in this, and it is laid down in Article 21 that the Prime Minister shall direct the operation of the Government. He shall be responsible for national defence. "Subject to Article 13, he shall have power to make regulations and shall make appointments to civil and military posts." Hence, the division of competencies between the President and the Prime Minister, as it is organised by the Constitution, appears to be rather ambiguous. According to the wording of the Constitution, both, the President and the Prime Minister hold important prerogatives in the field of defence policy. Article 9 of the ordinance from 7 January 1959 even seems to attribute the leading role to the Prime Minister.29 Originally, in application of Article 21 of the Constitution, the Prime Minister was meant to hold the main responsibility in the field of defence. This original scheme has, however, been altered by more than forty years of practice. During this period, the competences of the Presi-

29

"Le Premier ministre responsable de la défense nationale exerce la direction générale et la direction militaire de la défense. A ce titre, il formule les directives générales pour les négociations concernant la défense et suit le développement de ces négociations. Il décide de la préparation et de la conduite supérieure des opérations et assure la coordination de l'activité en matière de défense de l'ensemble des départements ministériels."

294

Jörg Gerkrath

dent have become more and more substantial, while the prerogatives of the Prime Minister have been shown to be merely formal.30 The reasons for this evolution are numerous. The influence exercised by General de Gaulle as first President of the Fifth Republic and the 1962 amendment of the Constitution, which introduced the direct election of the President, are only two of them. In 1993, the "Comité Veder made the proposal to amend Article 21 of the Constitution in order to coordinate the text with the practice. According to this (abandoned) proposal, the Prime Minister would have become "responsible for the organisation of the national defence".31 c. The Participation of Parliament in the Decision to Deploy the Armed Forces The French Parliament (National Assembly and Senate) does not have an important role to play in this field. The decision on the deployment of the armed forces can be taken without any participation of the Parliament. Only in the case of a declaration of war is an act of Parliament required. The deployment of the armed forces, abroad or at home, is an executive prerogative in France. The consultation or informing of the Parliament is left up to the goodwill of the Government, which acts as the circumstances direct.32 Article 35 of the Constitution provides that "A declaration of war shall be authorised by Parliament", but since 1945, no such authorisation has ever been required. It is not even known whether this authorisation must be given in the form of a statute and according to the legislative procedure, or if it could result from a simple resolution. As Article 35 is placed under Title 5 of the Constitution (on the relations between Parliament and the Government), it seems to be the Government which would be authorised to declare war, but such an interpretation is in conflict with the practice of the V. Republic (presidential supremacy). In the case of application of Article 16 by the President, Article 35 would become meaningless.33 In 1993, the Vedel Committee made the proposal to add a second phrase to Article 35 providing that every intervention of the armed forces abroad obliges the Government to issue a declaration which is

30 Regarding this topic see O. Gohin, Les fondements juridiques de la défense nationale, (1993) 1 Droit et Défense, p. 4. 31

See Propositions pour une révision de la Constitution, Comité consultatif pour la révision de la Constitution présidé par le doyen Georges Vedel, 15 février 1993, La documentation française 1993, p. 39. 32

Compare C. Kieffer, L'engagement des forces armées à l'extérieur du territoire, (1994) 1 Droit et Défense, pp. 14 et seqq. and M. Conan, Cadre juridique des forces en opérations extérieures, (2002) 202 Revue de la Gendarmerie nationale, pp. 66-70. 33

Compare T. Renoux et M. de Villiers, Code constitutionnel, (Paris, 1994), pp. 365-366.

Military Law in France

295

followed by a debate in Parliament. This proposal did not give rise to an amendment of Article 35. Furthermore, Parliament has the competence to authorise martial law (état de siège and état d'urgence). This state is decreed in the Council of Ministers, but its extension beyond twelve days must be authorised by Parliament (Article 36). In the field of external military operations, the role of the Parliament is very limited.34 The procedure of oral questions or motion of censure may be used as in any field of action of the Government. The Government may also ask for approval for a military operation, as it did in the case of the Gulf War, and more recently in the case of operations in Kosovo, but there is no legal obligation to do so. Nevertheless, French armed forces have taken part very actively in many UN peace-keeping missions. In 1995, France provided the most "blue helmets", and participated in 8 out of 17 operations in 2002 with a total of almost 700 persons sent abroad.35 The most important military participation (with 250 soldiers) concerns the FINUL (Lebanon). French troops have also conducted several OPEX (opérations extérieures) in order to rescue or evacuate foreign nationals (see above, 2.g.).36 Furthermore, and besides the participation in the Second Gulf War (with 19,000 soldiers at the peak), France has taken part in operations of peace enforcement under international auspices: e.g. operation "Southern Watch" (flight control over the territory of Iraq, since 1992), IFOR (Implementation Force, December 1995 to December 1996, Bosnia), and "SANTAL" (East Timor, until 15 January 2000).37 In 2002, French troops were engaged in three important multinational military operations: SFOR (with approximately 3,100 French military personnel in the Multinational Division Southeast), KFOR (about 5,200 French military

34 Cp. Assemblée nationale, Rapport d'information No. 2237 sur le contrôle parlementaire des opérations extérieures, présenté par F. Lamy, 8 March 2000. 35

According to the Minister of Foreign Affairs and the Minister of Defence, French observers or gendarmes are participating in the following operations: ONUST (13 observers, Palestine), MONUIK (9 observers, Iraq - Kuwait), MONUA (Angola), MINURSO (22 Western observers, Sahara), MINUBH (125 gendarmes, Bosnia), MIPONUH (24 gendarmes, Haiti), MINURCA (Central Africa), and M O N U G (5 observers, Georgia). 36

For a list of such operations, compare Moskos, 'The Postmodern Military' supra n. 20, p. 279. 37 For an overview of approximately 30 French OPEX in 1999 see: Assemblée Nationale, Rapport d'information No. 2237 du 8 mars 2000, présenté par François Lamy sur le contrôle parlementaire des opérations extérieures, pp. 18 et seqq.

296

Jörg Gerkrath

personnel since June 1999; from 1 October 2001, KFOR has been under the command of the French General Marcel Valentin), and "Task Force Harvest" (since September 2001 in Macedonia (FYROM), 550 French military have taken part in a multinational battalion under French command together with 400 German and 150 Spanish soldiers). Even in 1991, when strong French armed forces took part in the Second Gulf War, the government considered there to be no need for a declaration of war because it was merely participating in an operation of collective security. There are, however, at least two other procedures which make it possible to give the French Parliament a role in the decision on the employment of the armed forces. The first is based on Article 49 (1) of the Constitution, and was used by then-Prime Minister, Michel Rocard, on 16 January 1991. Article 49 (1) authorises the Prime Minister "after deliberation by the Council of Ministers", to "make the Government's programme or possibly a statement of its general policy an issue of its responsibility before the National Assembly". The statement of general policy made by Michel Rocard on the issue of the engagement of French armed forces in the Gulf was approved by a large majority (523 votes against 43). The second procedure results from Article 132 of the "Règlement intérieur" of the National Assembly which allows the Government to present a declaration to the Assembly (followed by a debate or not). Such a declaration must not be followed by a vote of any kind. This procedure was used in spring 1999 by Prime Minister Lionel Jospin to present the government's decision to participate in the air strikes against Serbia. More recently (on 3 October 2001), Jospin used the same procedure in order to organise a debate on an engagement of French armed forces in military operations against Al Qaida and the Taliban regime in Afghanistan. 38 d. The Functions of the Minister of Defence The Minister of Defence is not mentioned by the Constitution, but there has always been a minister in charge of the armed forces or more generally of the defence. The ordinance of 7 January 1959, defines his role in Article 16. The Minister of Defence implements the military defence policy (organisation and training of the armed forces, recruitment and management of personnel, armaments and infrastructure procurement). He is assisted by the Chief of Staff of the Armed Forces (use of forces, preparing for the future, military

38

Cp. A.-S. Firion, Le fondement juridique de l'intervention armée en Afghanistan, (2001) 4 Droit et Défense, pp. 31-41.

Military Law in France

297

international relations), the General Delegate for Armament (studies, research, and production), the Secretary-General for Administration (DSF - Financial Services Directorate, DFP - Personnel Function Directorate, DAG - General Administration Directorate), the Chiefs of Staff for the Army, the Navy, and the Air Force, the Director of the Gendarmerie Nationale, and the Director responsible for Strategic Affairs. The Minister of Defence combines the tasks delegated to him by the Prime Minister with those attributions which are defined as his by decree (Decree No. 62-811 from 18 July 1962, as modified). He is clearly placed under the authority of the Prime Minister and is responsible for the implementation of the defence policy which is determined by the Council of Ministers. He assists the Prime Minister in the field of the organisation of the armed forces. He is a political authority as well as the chief of the administration of his Ministry.39 e. The Role of the Military Leadership The military leadership is under the direction of a Chief of the Armies' Headquarters or Chief of the Defence Staff (chef d'état major des armées, CEMA). He assists the Minister of Defence in his attributions relative to the employment of the armed forces and their organisation; he exercises the commandment of the military operations, and he may suggest military measures to the Government. The Chief of the Defence Staff (CEMA), who is military adviser to the government, has three primary fields of responsibility: 1 .force deployment: he defines the concept and commands all military operations; 2. preparing for the future: he proposes, primarily to the Minister of Defence, the measures needed to ensure coherence in planning and programming activities; 3. international relations', he is responsible for relations with foreign armies, and directs the activities of the armed forces in this area. The attributions of the CEMA are defined in detail by a decree of 8 February 1982.40 In the exercise of his functions, the Chief of the Defence Staff (CEMA) has the following principal organisations at his disposal: the Central Defence Staffs (EMA), which give him staff support across his entire range of responsibilities, and within which can be found the Joint Operations Centre (COIA) which is responsible for with the conduct of operations, the Defence Intelligence Directorate (DRM), which is also directly responsible to the Minister of Defence, the

39 40

For details see B. Cruzet, Le ministre de la défense, (1998) 1 Droit et défense, p. 4.

Décret No. 82-138 du 8 février 1982, fixant les attributions des chefs d'état-major (JORF 9 février 1982).

298

Jörg Gerkrath

Joint Planning Staffs (EMIA) which prepare operational plans, and the Special Operations Command (COS), a command structure of overseas representatives, both within and outside French territory. French forces engaged in an operation, regardless of the service to which they belong, come under the command of CEMA. The most obvious pattern of the French system is the constitutional centralisation of defence policy in Presidential hands, which results (even in periods of cohabitation) in power being exercised through the Secrétariat Général de la Défense Nationale, subject to little oversight or external influence even from Parliament, as will be clarified below. This appears to be anachronistic and unworthy of a State with profoundly democratic traditions. Thus, it has been suggested that "France could usefully open up its processes in at least three ways: first, it could empower the checks and balances within the political system to exercise tougher oversight and accountability in defence matters, secondly, it could provide greater transparency with respect to defence programmes and expenditure, to facilitate oversight and accountability; and third, it could widen the base of those involved in debating defence matters at the highest levels".41

5. Parliamentary Control a. The Parliament's Powers to Control the Armed Forces The powers of the French Parliament to control the armed forces are very few. Parliament makes laws to define how defence is organised, the means dedicated to it, constraints imposed on citizens (e.g. the National Service code), finance laws (annual budget for the armed forces), and military programming laws, in which it periodically makes statements about the main orientation of France's military policy (equipment for the armed forces over several years). The division between the competence of the Parliament to enact legislation and the power of the executive to regulate by decree results from Articles 34 and 37 of the French Constitution. These two articles limit the areas of parliamentary legislation to the matters listed in Article 34, while all the rest is open to regulation by the executive power. The French situation is thus almost opposite to the principle of "Gesetzesvorbehalt" known in Germany. Article 34 of the Constitution places several fields within the realm of statutory law. There are essentially three domains which have to be governed by acts 41

See S. Gregory, Vers Une Défense Nouvelle: Defence Policy Planning and Review in France, (1998) 29 Disarmament Diplomacy, .

Military Law in France

299

of Parliament. Thus: "Statutes passed by Parliament shall determine the rules concerning: the obligations imposed for the purposes of national defence upon citizens in respect of their persons and their property; the fundamental guarantees granted to civil and military personnel employed by the State; Statutes also shall determine the fundamental principles of the general organisation of national defence." It should be noted, however, that especially with regard to the "general organisation of national defence" the real role of the Parliament of the Fifth Republic has been rather small. One of the most important texts, the Ordinance No. 59-147 of 7 January 1959 ("portant organisation générale de la défense"), is indeed a text which has the force of an Act of Parliament, but which has been adopted by the executive according to Article 92 of the Constitution. 42 Furthermore, several important decrees, which go far beyond the purpose of simple measures of application, have been adopted in this field.43 Both houses have created permanent parliamentary commissions in order to handle the functions of information and parliamentary control. The commissions may also create special "missions of information" to collect information on a particular situation. In practice, however, these commissions have never exercised strong control over the government. 44 The general procedures of censure and questioning according to Articles 48 to 50 of the Constitution also apply in the field of defence policy. Finally, Parliament has to authorise the ratification of different kinds of international treaties, which might concern the field of defence policy. According to Article 53, peace treaties and treaties or agreements relating to international organisation, or exchange or addition of territory, may be ratified or approved only by Parliament. In fact, the only possible way for the French Parliament to exercise effective control over the armed forces would be to cut defence expenditures. Thus, especially in the field of external operations, Parliament is confined to exercise its control a posteriori. The Conseil constitutionnel has recently corroborated this view in a decision on the reform of the special funds considering that the Par-

42

"Les mesures législatives nécessaires à la mise en place des institutions et, jusqu'à cette mise en place, au fonctionnement des pouvoirs publics seront prises en Conseil des ministres, après avis du Conseil d'État, par ordonnances ayant force de loi". This transitory disposition has been repealed by an amendment of the Constitution in 1995. 43

E.g. décret No. 96-520 du 12 juin 1996 "portant détermination des responsabilités concernant les forces nucléaires". 44

See F. Laffaille, La mission d'information parlementaire et le contrôle de l'action gouvernementale, (1998) 2 Droit et Défense, p. 34; www.defense.gouv.fr/def_natio/defense& parlet.html.

300

Jörg Gerkrath

liament cannot "intervene in the realisation of ongoing operations" because it must respect the prerogatives of the executive in the field of national defence.45 b. Special Forms of Parliamentary Control over the Military, Ombudspersons The general "ombudsperson" in France (le Médiateur de la République) does not have competence in the field of conflicts which may occur between the administrations and their staffs (Statute No. 73-6 of 3 January 1973, Article 8). In 1977, there was a proposition to establish a special military ombudsperson, but it was unsuccessful and has never been formally reintroduced. The Médiateur de la République is not a parliamentary ombudsperson, but an independent administrative authority {autorité administrative indépendante). He is nominated for 6 years by the Council of Ministers. Since May 1998, this function has been exercised by Bernard Stasi. An informational report presented recently by two members of the parliamentary commission for national defence and the armed forces reintroduced a suggestion to institute a special Médiateur for the military.46 c. Court of Auditors and Comparable Institutions The French Court of Auditors (Cour des comptes) has a general competence to control the budget of the State (central administration, public establishments, territorial units, etc.) and their expenditures. In June 1997, a special report on the budgetary management and the program of the Defence Ministry pointed out several fields of misadministration and formulated a severe critique.47

ΠΙ. The Structure of the Armed Forces 1. The Armed Forces and their Administration The whole military administration is organised under the responsibility of the Minister of Defence. The Ministry is divided into different structures, such as the General Staff, the Procurement Agency, the General Staffs of the Army, 45

Décision No. 2001-456 DC du 27 décembre 2001, "loi de finances pour 2002", point 45. 46

See Assemblée Nationale, Rapport d'information No. 2490 du 22 juin 2000, présenté par Bernard Grasset et Charles Cova sur les actions destinés à renforcer le lien entre la Nation et son Armée, p. 25 et seq. 47

Compare .

Military Law in France

301

Navy, Air Force, and Gendarmerie, and the General Secretariats for Administration, Health Services, and Petrol Services. There are about 99,000 civilians working in the Ministry of Defence. They work in all sectors of the Ministry, such as central administration, armies and common services, and general arms delegation. Today, most of them are recruited as civil servants (including those who have the status of "military workers").

2. Involvement of the Civilian Administration in the Process of Procurement of Material and Supplies This task is fulfilled by the general arms delegation (procurement agency), which is part of the Ministry of Defence, without any involvement of the civilian administration.

IV. Soldiers' Rights and Duties 1. Restrictions on Fundamental Rights of Soldiers a. General Aspects In France, fundamental rights do not enjoy the same level of protection as in Germany. The protection of "fundamental rights" - or "human rights and public liberties", which is the term more commonly used in France - does not always derive from the Constitution. Not all public liberties have constitutional value in France. However, the case law of the Conseil Constitutionnel has widened the scope of a number of rights and liberties guaranteed by the Declaration of 1789 or the preamble of the Constitution of 1946, or rights recognised as unwritten principles. According to Article 34 of the Constitution, "Statutes shall determine the rules concerning civic rights and the fundamental guarantees granted to citizens for the exercise of their public liberties". Therefore, while the "fundamental guarantees" can only be determined by Parliament, any other rule which does not concern these fundamental guarantees may be established by simple decree, e.g. the RDGA (General Regulation on Discipline in the Armed Forces, Decree No. 75-675 of 28 July 1975). According to Article 6 of the General Statute of the Military (Statute of 13 July 1972 - SGM), soldiers enjoy all the rights and liberties granted to citizens, but the same article adds: "the exercise of some of them is either forbidden or restrained under the conditions of this law." The question whether this statute,

302

Jörg Gerkrath

which imposes important restraints on the exercise of several rights or liberties, is fully consistent with the Constitution might be discussed. But as the question has not been submitted to the Conseil Constitutionnel within the period of time allowed for disputing statutes, its conformity with the Constitution can not be challenged anymore.48 The statutory position of soldiers in France is therefore often qualified as "cantonnement juridique", which may be translated as "legal containment".49 This expression means that soldiers who serve as volunteers (whether on a career or a contract basis) agree to be submitted to special duties and service obligations which come with their status. Article 1 SGM puts it this way: "Military status requires under all circumstances discipline, loyalty, and a spirit of sacrifice. The duties which it involves and the submissions which it implies deserve the respect of the citizens and the consideration of the nation".50 This article signifies furthermore that soldiers' rights and freedoms may be restricted by law.51 There has not been any noteworthy public discussion or criticism with regard to the restriction of soldiers' rights. The only issue which seems to raise some discussion is the soldiers' right to free expression. A number of recent publications concern this very question.52 b. Political Neutrality of Soldiers From 1872 to 1945,53 French soldiers were deprived of the exercise of their political rights (to vote and to stand as a candidate). Since 1972, French soldiers have again been able to exercise their political rights, but several constraints persist, which make the effective exercise of these rights difficult. Soldiers in active service are not allowed to enrol in political parties, or indeed

48

Regarding this issue, see J. Robert, Libertés publiques et défense, (1977) RDP, p. 951.

49

See F. Dieu, Le cantonnement juridique, (2002) 202 Revue de la Gendarmerie pp. 116-121.

nationale,

50

"L'état militaire exige en toute circonstance discipline, loyalisme et esprit de sacrifice. Les devoirs qu'il comporte et les sujétions qu'il implique méritent le respect des citoyens et la considération de la nation." 51 See J. Duffar, Le "soldat-citoyen", (1995) 2 Droit et Défense, p. 18 and J. Robert, Libertés publiques et défense, (1977) RDP, p. 936. 52 See M. Jacob, Le besoin d'expression collective des militaires est-il satisfait par les institutions actuelles?, (1998) Revue administrative, p. 285; Assemblée Nationale, Rapport d'information No. 2490 du 22 juin 2000, présenté par Bernard Grasset et Charles Cova sur les actions destinés à renforcer le lien entre la Nation et son Armée, p. 25; B. Mignot, Lien armée-nation et expression des militaires, (1998) Défense nationale, p. 82. 53

Act of Parliament, 27 July 1872, ordinance of 17 August 1945.

Military Law in France

303

in any association of political character (Article 9 SGM). If they want to stand as a candidate in an election, this prohibition is simply suspended during the campaign. This does not make it impossible to be elected in local elections, but certainly in national ones, because the list of candidates are determined by decisions within the political parties long before the beginning of the official campaign. Individual candidates do not have a real chance to be elected on the national level without being supported by a political party. Article 10 of the General Regulation on Discipline in the Armed Forces (RDGA) further adds a general duty of the military not to compromise the neutrality of the armed forces in the philosophical, religious, political, and professional (trade union) fields.54 Furthermore, within all military establishments, it is forbidden to organise or to participate in any demonstrations or propaganda actions in these fields (Article 10 (3)). Article 19 RDGA, which grants a right for special leave in order to take part in religious ceremonies, does not mention political meetings and no other disposition guarantees such a right. Military personnel may attend political meetings as long as they are in civilian dress and their military status is not mentioned.55 The distribution of political leaflets would fall under the very general prohibition of Article 10 RDGA (prohibition of demonstrations or propaganda in the political field). Publications which are intended to damage morality or discipline in the armed forces may be prohibited (Article 23 RDGA). Finally, there are cases of incompatibility and ineligibility. Soldiers who want to become, for example, a Member of Parliament, or of a local council (municipal, departmental, or regional), will be placed in the position of "release", which means that they will lose pay. This has the effect of preventing the soldier from accepting a local political mandate, because these do not carry sufficient remuneration. Restrictions on the eligibility of soldiers also derive from the general legal texts (Code électoral) according to which an officer of the army may not be elected for any political position within the boundaries of the district which falls (or fell within the past 6 months) under his command. 56

54

"Article 10 Respect de la neutralité des armées. - Conformément à la loi, le militaire a le devoir de ne pas porter atteinte à la neutralité des armées dans les domaines philosophique, religieux, politique ou syndical. (...)". 55 Article 10-1: "Le militaire en activité de service ne doit pas s'affilier à des groupement ou associations à caractère politique ou syndical. Il peut, par contre, en tenue civile, assister à des réunions publiques ou privées ayant un caractère politique, sous réserve qu'il ne soit pas fait état de sa qualité de militaire". 56

See Code électoral Articles L.O. 133-5, 296, L. 195-5, 231-3 and 340. D. Dutrieux, Pour un participation des militaires à la démocratie locale, (1998) 1 Droit et Défense, p. 37.

304

Jörg Gerkrath

Artide 7 SGM guarantees the freedom of opinion and belief.57 The soldier's file must not contain any reference to such opinions and the grades assigned to him by his superiors must not refer to his opinions (Article 26 SGM). Though guaranteed by Article 7 of the General Statute, freedom of expression is restricted. Opinions and beliefs may be expressed only when off-duty ("en dehors du service"), and with the self-restraint required by military status. An exception is the freedom of religion. Article 7 SGM states explicitly that the freedom to attend religious services is guaranteed. This includes the right to stay away from official religious ceremonies. Furthermore, Article 19 RDGA grants a right for special leave in order to take part in religious ceremonies. In some cases, preliminary authorisation is necessary if a soldier wants to express himself in public on political questions (Article 7 (2) SGM). c. Freedom of Association The right of association is strictly limited within the French armed forces. Article 10 SGM prohibits the existence of "professional groupings with trade union character", and holds the membership of soldiers in such unions as being "incompatible with military discipline." This general interdiction seems to be anachronistic and contrary to Article 11 of the ECHR as well as to the French Constitution. 58 Recently, during a EUROMIL meeting, members of the French Parliament seemed to be interested in the German experience and the DBwV.59 In practice there have been transgressions of the interdictions formulated by Article 10 SGM. On 13 April 2001, for example, the First Association for the Defence of Soldiers' Rights (ADEFDROMIL) was created by an officer on active duty.60 Article 10 RDGA furthermore strongly restricts the right of free assembly. Within all military establishments, it is forbidden to organise or to participate in any demonstration or propaganda action in the abovementioned fields (Article 10 (3)). Concerning the right to complain against disciplinary meas-

57

"Les opinions ou croyances philosophiques, religieuses ou politiques sont libres".

58

See Syndicat national de la magistrature, (2001) 164 Justice, p. 21.

59 EUROMIL, the European Organisation of Military Associations, is a union of free democratic associations representing the interests of military personnel. Any association that represents the interests of citizens employed in the defence sector, their dependants, or surviving dependants can become a member of EUROMIL. Until very recently, there was only an association of former servicemen in France: Association Nationale et Fédérale d'Anciens Sous-Officiers de Carrière de l'Armée Française (ANFASOCAF). 60

See La Tribune des Sous-Officiers, No. 155, 2001.

Military Law in France

305

ures, Article 13 (8) RDGA prohibits any kind of collective demonstration, petition or complaint.61 Finally, according to Article 11 SGM, the right to strike is incompatible with military status. d. Conscientious Objection There is no right of conscientious objection for French soldiers.62 If a service member desires to leave the armed forces altogether, he or she will have to be dismissed. Dismissal is governed by Articles 80 et seqq. SGM. An officer's demand to be dismissed has to be accepted by decree and can be rejected by the Minister of Defence. In some cases dismissal will be accepted only for "exceptional considerations". This is the case, for instance, if the service member has received a specialised education during the period of service he engaged for. As the Conseil d'État recently decided, a refusal to dismiss needs simply to be motivated by a legitimate service need, and does not place the military in a situation of "forced labour" according to Article 4 ECHR. 63 In any case the rights to a pension might be lost. If a soldier desires not to take part in one particular operation for reasons of conscience, he may ask to be excused from service concerning that particular operation, but there is no right not to be sent to a theatre of combat. Refusal to obey an order to go would expose the soldier to disciplinary sanctions. e. Equal Treatment The preamble of the French Constitution of 1946 contains in its Section 3 a general principle of equal treatment of men and women in any field, which must be ensured by the law. Accordingly, the General Statute of 1972 does not contain any restriction on women joining the armed forces. However, until recently, such restrictions resulted in practice from a number of decrees which determine the status of the different corps of officers. These decrees used to limit women's access by fixing a maximum percentage of women to be recruited each year.64

61

Les manifestations, pétitions ou réclamations collectives sont interdites.

62

Regarding the right of objection of young men who have submitted to conscription in the past, see J. Duffar, L'objection de conscience en droit français, (1991) RDP, p. 657. 63 64

See CE, 7 February 2001; M. Béranger, (2001) 203 Cahiers de la fonction publique, p. 31.

See e.g. Decree No. 75-1206 of 22 December 1975 (portant statut particulier du corps des officiers des armées de l'armée de terre) Article 2. A ministerial decision determined which positions could be held by women.

306

Jörg Gerkrath

This Situation was altered by Decree No. 98-86 of 16 February 1998, which modified the 17 decrees fixing the status of the different corps of officers. All remaining quantitative limitations on the employment of women have been removed from these decrees.65 Exceptionally, women may still be excluded from some forms of military employment if their exclusion is justified by the particular nature or the specific requirements of these employments. Exceptions are determined by decision of the Minister of Defence enumerating these employments. Thus, the French law appears now to be fully compatible with the EC directive of 9 February 1976, and the case law of the EC J in Johnston, Sirdar, and Kreil. In spite of the legal situation, it is obvious that in the French army, women are not equal to men. This was underlined in a recent report put together by a mixed working group of officers called "G2S" ("Groupe deux sexes").66 One might add that it is significant that a woman is exercising the function of the Minister of Defence for the first time in May 2002, and the French armed forces are still comprised of only 8.5 % women. There is no special legal text regulating the situation of homosexuals in the French armed forces. As long as the general duties are respected, they do not suffer discrimination. The introduction of gay or lesbian magazines could fall under the prohibition of Article 23 R D G A (protection of morality and discipline) if they had pornographic character, but that would also be the case concerning any heterosexual publication of such kind. According to the Chief of the Army's public relations officer, General Revel, "homosexuals have their place within the army", and the first association of gay and lesbian soldiers was founded in 2001.67

/

Other Fundamental Rights and their Restrictions

-

Free movement (Articles 12 and 13 SGM):

Soldiers may be called to serve "anytime and anywhere". They may need official permission before leaving the national territory for a destination outside the EU, or one in certain foreign countries listed by the Ministry of Defence. Frequent changing of residence is part of their job and may therefore justify special subsidies in case of particular difficulties with regard to personal

65

Compare S. Le Gall-Sampaio, L'accès des femmes à la fonction publique militaire, (1998) 2 Droit et Défense, p. 21. 66

See J. Isnard, Dans les armées françaises, la femme n'est l'égale de l'homme, Le Monde, 25 May 2002, p. 1.

67

See Le Monde, 4 May 2000 and 27 January 2001, p. 8.

Military Law in France

307

accommodation. The military commander may restrict soldiers' freedom of movement if necessary (Article 18 RDGA). He may also oblige the service member to reside within certain geographical limits or inside of the military domain (Article 20 RDGA). -

Marriage (Article 14 SGM):

Before 1972, French soldiers had to request an authorisation from the Minister in order to get married. This obligation has been removed by the General Statute from 1972. An authorisation is, however, still necessary in two cases: when the future spouse does not have French nationality, or when the soldier who wishes to marry is a Foreigner serving in the French armed forces. The Conseil d'État has recently indicated that only interests of national defence could be invoked by the minister as motivation to refuse the authorisation to get married.68 -

Education (Article 30 (1 ) and30 (2) SGM):

Career soldiers may benefit from measures of professional orientation (Article 30 (1)) or from special leave for instruction in order to prepare for re-entry into civilian life (Article 30 (2), "congés de reconversion").

2. Legal Obligations of Soldiers Soldier's duties and obligations are determined on the one hand by the General Statute of the Military of 1972, and on the other hand by the General Regulation on Discipline in the Armed Forces of 1975. According to Article 1 SGM, "military status requires in all circumstances discipline, loyalty, and a spirit of sacrifice. The duties which it involves and the submissions which it implies deserve the respect of the citizens and the consideration of the nation". 69 The following specific duties are defined by the General Statute of 13 July 1972: obligation of loyalty and self-restraint (Articles 7 and 8 SGM), and a duty to serve at all times and in all places (Article 12 SGM). Furthermore, soldiers must obey the orders of their superiors, and are responsible for the execution of missions assigned to them (Article 15 SGM). They must not be ordered to do and they must not carry out acts which are contrary to the 68 69

CE, 15 December 2000, Nerzig.

"L'état militaire exige en toute circonstance discipline, loyalisme et esprit de sacrifice. Les devoirs qu'il comporte et les sujétions qu'il implique méritent le respect des citoyens et la considération de la nation."

308

Jörg Gerkrath

law and customs of war or international agreements, or which constitute crimes or infractions ("délits"), especially against the safety and the integrity of the state. They also have to respect secrecy and the duty of discretion (Article 18 SGM), and must observe a prohibition on the exercise of any profitable private activity or the holding of any interest in companies which are under their control or surveillance, or with which they negotiate contracts. There is also a duty to declare any professional activity exercised by their spouses (Article 35 SGM). The dispositions of the General Regulation on Discipline in the Armed Forces (RDGA) define the special duties and responsibilities of soldiers in a more detailed manner. The RDGA distinguishes principles (Article 1), duties and responsibilities (Articles 6-10) and service rules (Articles 21-25). Article 1 defines the principles of military discipline. Discipline is founded on the principle of obedience to orders (Article 1 (2)) and is exercised in the framework of strict neutrality (Article 1 (4)). Chapter II of the RDGA ("Devoirs et responsabilités du militaire") specifies four categories of duties and responsibilities: general duties, duties of the superior, duties of the subordinate, and duties in combat. The general duties are enumerated by Article 6 RDGA. They comprise the duties of the soldier to obey legal orders, to behave uprightly and with dignity, to observe military regulations and accept the restraints issuing from them, to respect the rules on secrecy and express himself with due reserve, especially when concerning military subjects, to take care of materials and installations belonging to the armed forces, to provide assistance to the public forces if they legally request aid, to instruct himself in order to hold his post with competence, to train himself in order to be efficient in action, and to prepare himself physically and morally for combat. Further special duties are described in detail by Articles 7-10 RDGA, such as the duties of the superior, duties of the subordinate, and duties in combat. Duties of the superior and duties of the subordinate will be described below. Duties in combat result mainly from Article 9, which concerns the duty to participate in action, even at the risk of life, until the mission has been accomplished, and the duty to respect the rules of international law which apply during armed conflicts (Article 9 (1), introduced by Decree No. 82-598, from 12 July 1982). The General Regulation on Discipline in the Armed Forces also outlines a number of special duties which fall under the heading of "Service Regulations" (Chapter IV, "Règles de service"). These service regulations may be further detailed according to the special needs of the unit or the corps. Article 21 concerns the wearing of the uniform (duty of strict correctness) and hair or beard cut (duty to respect the requirements of hygiene and security). Article 22 concerns the military salutation which is owed to superiors. Article 23 relates to the

Military Law in France

309

protection of morality and discipline. It prohibits the introduction into military establishments of publications which damage the morality and/or discipline of the troops, the organisation of games or lotteries, and the introduction of alcohol, drugs, or explosives without authorisation. Article 24 governs the duty of discretion. Article 25 concerns detention and the carrying of weapons. Finally, Article 34 establishes the right and the duty to report faults committed by direct subordinates or personnel of a lower rank, and to request their punishment. There are no special duties concerning the behaviour of soldiers abroad. There is also no duty of comradeship comparable to that which exists in Germany. Such a duty could be included, however, under the general duty of discipline. The same is true concerning the issue of becoming intoxicated during service and for absence without leave.

3. The Power of Command and the Duty to Obey The obligation to obey is understood very strictly in French military law. The authority of the superior and his power to command depend purely on hierarchical position and come with it automatically. The duality of order-obeisance cannot be easily disrupted. The General Statute from 1972 states in Article 15 (2) that soldiers must obey orders given by their superiors and are responsible for the execution of missions entrusted to them. Nevertheless, acts which are contrary to the law (lois), customary law of war, or international treaties, or which constitute crimes or infringements, especially against the security and the integrity of the state, must not be commanded and must be disobeyed. Article 8 (3) RDGA adds that the subordinate shall not execute any order which is manifestly illegal or contrary to the rules of international law which apply during armed conflicts, or to international treaties which have been properly ratified or approved. If the plea of illegality is, however, presented merely to avoid the execution of the order, the subordinate exposes himself to disciplinary and penal sanctions for refusal to obey a lawful order. French penal law distinguishes three types of unlawful behaviour: crimes, infractions ("délits"), and contraventions. According to Article 15 SGM and 8 (3) RDGA, any illegal order must therefore be considered as forbidden and the subordinate must not obey in that case. In any case, the subordinate is required to provide proof of reflected initiative ("il cherche à faire preuve d'initiative réfléchie", Article 8 (1) RDGA). According to the General Criminal Law (code pénal, Article 122 (4)) the person accomplishing an act under the command of the legitimate authority is

310

JörgGerkrath

not responsible (in the penal sense) for that act unless the act is manifestly illegal.70

4. Social Rights of Soldiers and their Families Articles 20 to 24 of the General Statute from 1972 describe the social rights of soldiers. Besides the coverage of certain types of insurance for special risks encountered by soldiers (Article 21 SGM), the main social advantage is the right to receive treatment by the health services of the armed forces (service de santé des armées),7' and to receive assistance from the Social Action Service of the Armed Forces (Article 22 SGM). Soldiers fall under the general social security plan for French civil servants and benefit from special pension regulations (Article 20 SGM). Soldiers also receive special protection by the state with regard to any kind of danger or attacks in the exercise of their functions (Article 24 SGM). The state is obliged to repair any damage caused by such dangers or attacks. The state is furthermore obliged to grant support in legal proceedings if a service member is the subject of penal proceedings because of facts which do not have the character of a personal fault (Article 24 in fine SGM). There is no regulation which establishes a general right to education for soldiers, but a right to education prior re-entering civil life does exist. Pastoral care is organised within the armed forces on the basis of a statute dating from 8 July 1880, in spite of the dispositions of the Statute of 9 December 1905, which recognises the separation of Church and State, and which indicates that the State neither recognises nor finances any religious service. The General Statute of 1972 only declares in Article 7 that the freedom of thought and belief does not hinder the free exercise of religion within military enclosures or on ships of the navy. A decree of 1 June 1964, determines the statutory situation of the military ministers ("aumôniers militaires"). Three religions Catholic Christianity, Protestant Christianity, and Judaism - are represented by ministers who can have either military or civilian status. In the three departments where the Concordat of 1801 still applies, the ministers have a special status determined by the Concordat. 72

70

"N'est pas pénalement responsable la personne qui accomplit un acte commandé par l'autorité légitime, sauf si cet acte est manifestement illégal". 71 72

See Decree No. 78-194 of 24 February 1978.

See B. Cruzet, L'exercice des cultes dans les armées, (1995) 4 Droit et Défense, pp. 28 et seq.

Military Law in France

311

Leisure activities fall under service regulations which are proper for each army and each establishment (règlement intérieur). There is only a general regulation on service from 1967 (Decree No. 67-1268 du 26 décembre 1967 "portant règlement du service de garnison") which mentions in Article 12 the use of common installations like the mess, library, hotels, club, lobby, and gym. With regard to soldiers on missions abroad, there seems to be a lacuna. Soldiers sent abroad on OPEX are indeed covered by the protection granted by the social security scheme of the armed forces, but only "during service". In order to avoid problems occurring from the exact delimitation of what is to be understood by the terms "in service" during a mission abroad, the administration encourages soldiers to contract personal insurance, like any ordinary tourist. 73 The CSFM has recently deliberated on this question, and the Minister of Defence has agreed to create a working group which will make suggestions. He has also ensured that these kinds of situations will be examined with the closest attention. 74 With respect to the soldiers' families, Article 23 of the General Statute simply mentions that this question is regulated by decree. This has been done as far as the health service is concerned (Decree No. 78-194 from 24 February 1978). In fact, this decree distinguishes two kinds of beneficiaries: those who have priority - like the soldiers themselves - and those who will be treated without priority - like family members of soldiers (but also civilians working for the Ministry of Defence). In practice, all civilians asking for medical attention are treated by the SSA. According to Article 22 of the General Statute from 1972, "the military are entitled to receive treatment by the army's health service".75 A decree of 24 February 1978 determines the conditions and the beneficiaries of treatment by the "service de santé des armées" (SSA). Details are ruled by instructions given by the Minister of Defence. 76 The decree from 1978 distinguishes between beneficiaries who must be treated with priority (Article 3), and other beneficiaries (Article 5). Soldiers not only have the right to be treated by the SSA, they are actually required to approach the SSA for all medical treatment. Only in case of absolute necessity {"force majeur"), and if their condition so requires may they be treated by civilian medical services (Article 4). 73

On this point refer to E.-J. Duval, Protection sociale des militaires et banalisation des armées, (1999) 2 Droit et Défense, p. 56. 74

Compte rendu synthétique de la 62ème session du CSFM du 27 novembre au 1er décembre 2000. 75 76

"Les militaires ont droit aux soins du service de santé des armées."

See décret 78-194 du 24 février 1978 relatif aux soins assurés par le service de santé des armées.

312

Jörg Gerkrath

According to the Decree from 1978, soldiers' families (spouses and children which are supported by the household) may benefit from the "SSA" subject to the prior satisfaction of the needs of the persons falling within the category of Article 3. In practice, the treatment of family members is always ensured. The military medical system (SSA) is permitted to treat civilians. In fact, the military hospitals receive more civilians then military personnel. Collaboration between the military hospitals, which belong to the SSA and the civilian medical system is organised by the Decree No. 74-431 of 14 May 1974. Military personnel must use the facilities of the SSA (Article 4, Décret 78-194 du 24 Février 1978 relatif aux soins assurés par le service de santé des armées). An instruction of the Minister of Defence determines the conditions of collaboration if a service member has to receive treatment from a civilian establishment.77 Military doctors are subordinate to the general rules governing the exercise of the medical professions (Code de la santé publique). Some differences exist however. According to the décret 81-60 du 16 janvier 1981 "fixant les règles de déontologie applicables aux médecins et aux pharmaciens chimistes des armées", for example, they do not need to register as civilian doctors in order to exercise their profession.

5. Rules Governing Working Time a. Working Time and Compensation for Overtime The general texts (SGM and RDGA) do not contain any regulation concerning working hours or overtime. As the service member may be asked to serve at any time (Article 12 SGM), the idea of overtime does not make any sense. They may benefit from special leave if this is compatible with the needs of the service (Article 19 RDGA). During OPEX, the French military receive higher wages (indemnité de service en campagne, ISC or indemnité de sujétions de service à l'étranger, ISSE), consisting of 150% of their normal pay. They also acquire the right to special rest at the end of campaign. Confronted with a crisis among the personnel of the Gendarmerie which led several hundreds of gendarmes to manifest their dissatisfaction by parading in public and in uniform, the government adopted special measures in December

77

Les conditions dans lesquelles le service de santé des armées prend en charge les militaires et personnes indiqués ci-dessus, qui, pour des raisons de force majeure, ont dû recevoir les soins que nécessitait leur état en dehors de toute intervention de ce service, sont fixées par une instruction du ministre chargé des armées.

Military Law in France

313

2001 in order to satisfy their requests for equity with the situation of the national police forces. Following this, the Minister of Defence entered into a wider discussion with all the armed forces and adopted, in February 2002, a "plan de développement de la condition militaire",78 A series of the measures laid out in this plan have been adopted since April 2002, in order to improve the "military condition".79 These texts aim to compensate some of the special constraints on military personnel by granting higher supplements to the basic salaries. b. Holidays and Special Leave Holidays (official leave or permitted leave) are regulated by Articles 53 SGM and 14 et seqq. RDGA. Article 53 SGM distinguishes 5 types of official leave ("congés"): sickness rest (up to 6 months in a year with pay), maternity leave or adoption leave (under the same conditions as for any other employee), leave in the interest of service (eg for education or for personal convenience, with pay in the first case, without pay in the second case), and leave at the end of service or at the end of a campaign (maximum 6 months). The RDGA provides for long term specially permitted leave and for specially permitted leave for family events. In any case, these permissions must take into account the needs of the service. If the circumstances so require, the military authority may recall soldiers on leave (Article 14 RDGA). During campaigns or OPEX, the regulation of permitted leave is determined by the Minister of Defence. Permission of long duration can be taken for 45 days per annum. The right to leave a military installation on permission is acquired in slices of 4 days per month of service, which means that after 1 month of service in the military the soldier may take 4 days off. Short-term permissions for family events are governed by special instructions (Article 16 RDGA).

6. Legal Remedies, in Particular Rights to File a Complaint According to Article 13 of the Decree No. 75-675 of 28 July 1975 (General Regulation on Discipline in the Armed Forces, modified by Decree No. 85-914 of 21 August 1985, and Decree No. 2001-537 of 28 July 2001), soldiers have a 78

See J. Isnard, Pour la première fois, les gendarmes en colère manifestent en tenue, Le Monde, 6 December 2001, p. 11; J. Isnard, La fronde des gendarmes oblige le gouvernement à rouvrir le dialogue, Le Monde 8 December 2001, p. 11. 79

Four decrees and thirteen arrêtés were adopted on 24 April 2002 and published in the JORF of 2 May 2002.

314

Jörg Gerkrath

general right to file a complaint against disciplinary measures which affect them. Furthermore, according to Article 13(1) RDGA (introduced by Decree No. 85-914 of 21 August 1985), soldiers may apply to the general inspectors with any question concerning their personal situation, the conditions of the exercise of service, or the life within the military community. Besides these internal rights of complaint, soldiers can use the general legal remedies in order to contest administrative measures which affect them. The Conseil d'État has indeed progressively accepted its competence to decide on measures which, until several judgements in 1995, it used to consider internal measures.80 Since 1 September 2001, a new procedure applies in the field of military litigation.81 This procedure is governed by a decree of 7 May 2001,82 which implements Article 23 of a statute of 30 June 2001.83 According to this decree the new procedure requires the exercise of a preliminary administrative complaint ("recours administratif préalable") against all acts which affect the personal situation of the service member, except those matters concerning their recruitment, the exercise of disciplinary power, or measures taken on the basis of the "code relatif aux pensions militaires d'invalidité". The new rules thus apply to litigation in the fields of promotion, grading, transferrai, etc. Before bringing a claim into court, the service member must go to a commission which will examine the complaint. The commission is constituted of officers, and will issue a simple recommendation to the Minister of Defence, who has the competence to reject or to admit the complaint. Any action brought directly to the administrative courts would have to be declared inadmissible. Finally, Article 13 (8) RDGA prohibits any kind of collective petition or complaint. This disposition is part of the rules concerning complaint against disciplinary measures. Its formulation, however, seems to indicate that it applies generally.

80

See X. Latour, L'évolution de la jurisprudence du Conseil d'État sur les mesures d'ordre intérieur en matière de défense: les arrêts Marie et Hardouin, (1995) 2 Droit et Défense, p. 31. 81 See R. Rialland, Réforme de la procédure des recours contentieux militaires et création de la commission d'examen préalable des recours, Gazette du Palais, 18 August

2001, p. 28. 82

Décret No. 2001-407 du 7 mai 2001 "organisant la procédure de recours administratif préalable aux recours contentieux formés à l'encontre d'actes relatifs à la situation personnelle des militaires". 83

Loi No. 2000-597 du 30 juin 2000 relative au référé devant les juridictions administratives.

Military Law in France

315

7. Rights of Institutional Representation In France, there is nothing similar to the "Deutscher Bundeswehrverband" but members of the French National Assembly seem to be interested in the right of association as it is practised in Germany. During a EUROMIL meeting, they were particularly interested in the relationship of the "Deutscher Bundeswehrverband" with the German Government and the Ministry of Defence. The right of association is not granted to active servicemen in France. However, the armed forces were restructed into a professional army in 2001-2002 and due to this development the right of asscoiation is now being discussed by French politicians. As it has been stated, "The way is probably still a long one before the French public will get used to the idea of the right of association for military personnel". 84 There is nothing similar to the German spokesman in the French armed forces either. The only institutional representation is realised through category presidents ("présidents de catégories"), participating commissions ("commissions participatives"), and the councils of the military function ("conseils de la fonction militaire", CFM) proper to each corps of the armed forces (army, navy, air force and gendarmerie), and, at the top, the "Conseil Supérieur de la Fonction Militaire", (CSFM) which has been in existence since 1969.85 Since October 2001, Category President - those inside each unit who represent the three categories of soldiers (officers, sub-officers, and private soldiers) - has been an elected office.86 The conditions of the election of these Category Presidents and participating commissions result from an "arrêté" and an instruction adopted in April 2001.87 This "aggiornamento" within the French armed forces had been strongly desired by the members of an army "whose morale had been affected" according to President Chirac himself.88 This reform remains however quite modest, as the lists of candidates are subject to approval

84

See EUROMIL meeting in April 2000, 2000.htm. 85

http://www.hod.dk/Euromil/Today/APR

See Loi No. 69-1044, du 21 Novembre 1969.

86

See J. Isnard, Les armées seront appelées à élire des représentants dans chaque formation locale, Le Monde, 7 May 2001.

87 Compare Arrêté du 12 avril 2001, relatif à la désignation des présidents de catégorie et des membres des commissions participatives; Instruction No. 201400/DEF/SGA/DFP/ FMI du 6 septembre 2001, relative à l'élection des présidents de catégories et des membres des commissions participatives. 88

See J. Isnard, Des "soviets" dans l'armée de terre française, Le Monde, 16 October

2001.

316

Jörg Gerkrath

by the colonel at the head of each regiment. The members of the seven CFM and the CSFM continue to be selected by drawing lots.89 The CSFM is to be consulted in order to give advice on questions concerning the military function. 90 According to a judgement of the Conseil d'État, it must be consulted on any question of general nature concerning either the military function or the condition and the status of the military.91 The 74 members of the CSFM represent the different military ranks and the different components of the armed forces. The CSFM has a purely consultative function; its function is determined by an "arrêté" of 20 January 2000, "portant règlement intérieur du CSFM et des CFAf'.

V. The Relationship of the Superior to Subordinate Personnel 1. Legal Rules Concerning the Relationship between Superior and Subordinate The relationship between superior and subordinate is very strictly defined by the relevant text: the Decree No. 75-675 - General Regulation on Discipline in the Armed Forces. The organisation of the armed forces is based on hierarchy and authority, which are functional imperatives (Articles 3 and 4 RDGA). Article 3 defines the military hierarchy and Article 4 determines the conditions for the exercise of authority. Hierarchy of grades is determined by the General Statute of the Military of 1972. The particular hierarchies which may exist in each corps and its correspondence with general hierarchy is determined by the particular status of the corps (e.g. for officers of the army Decree No. 75-1206 of 22 December 1975).92 The exercise of authority normally comes with rank, and respects the hierarchical order unless it is exercised by the holder of a "service letter" or a "command letter", or if special instructions have been issued (Article 4 RDGA). The duties of the chief and the subordinates are determined by Articles 7 and 8 RDGA. Article 7 indicates that the superior makes decisions and expresses them by orders. He assumes the entire responsibility for the orders and 89

See B. Cruzet, Le Conseil supérieur de la fonction militaire, (1995) 2 Droit et Défense, p. 23; M. Jacob, Le besoin d'expression collective des militaires est-il satisfait par les institutions actuelles ?, (1998) 302 Revue administrative, p. 285. 90

See General Statute of the Military, Article 3 and Decree No. 99-1228, 30 December 1999.

91 92

CE 27 October 1978, Lamende, Ree. CE, p. 394.

Compare Code pratique de la fonction publique, Tome VIII, Fonction militaire, Statuts particuliers des corps militaires, (Paris, 1990).

Military Law in France

317

their execution. He must not deliver orders contrary to the law. He must respect the rights of the subordinates. Article 8 RDGA affects the duties of the subordinates. Subordinates must loyally execute the orders received and are responsible for their execution. If it turns out to be impossible to execute a given order, the subordinate will report as soon as possible to the superior.

2. Subordination of Soldiers to the Command of a Superior of Foreign Armed Forces The question whether soldiers may be placed under the command of a foreign superior does not seem to create serious legal problems under French military law. Any command power derives finally from the powers of the President of the Republic - who is Chief of the Armed Forces - and is exercised in his name by the entitled commander. Thus, a simple decision of the President may accomplish this objective. In practice, however, and up to now, French soldiers have not been placed directly under the command of a foreign officer. There is always an intermediate French command in the operations theatre (Commandement des éléments français, COMELEF). Only the French (commanding) officer will thus be placed directly under foreign command. He will receive an instruction to co-operate from the French CEMA. Only operational command will be transferred. Article 5 of the RDGA, as modified by Decree No. 2001-537, now explicitly indicates that for each OPEX, three levels of command authorities must be determined.93 As far as simple measures of administrative and technical surveillance are concerned, an "arrêté" of the Minister of Defence of 11 May 2000, indicates "Les commandants organiques des éléments français de force multinationale" as the only competent authorities. Disciplinary power, as well as the power to give grades ("pouvoir de notation") will in any case remain with national authorities. The Conseil d'État has indeed decided, that "the state can not cede the power to accord a rank to one of its agents to a third country or to a foreign organisation".94 There can be no doubt that the position of the Conseil d'État would be very similar with regard to the power to take disciplinary measures. 93

"Au sein de chaque armée, formation rattachée et organisme interarmées, y compris en opérations extérieures, sont en outre déterminées les fonctions comportant pour leur titulaire les prérogatives d'autorité militaire de premier, de deuxième et, éventuellement, de troisième niveau définies par le présent règlement." 94

Compare CE, 11 October 1999, M. Calleja.

318

Jörg Gerkrath

For each multinational operation, the rules of engagement and the SOFA or a special executive agreement will determine the details. There are no other special rules (constitutional or simple statutory rules) for the relationship of superior to subordinate, or for the right to command soldiers of other forces in one's own country.

3. Service Regulations and their Legal Nature There is a general regulation on service from 1967 (Decree No. 67-1268 du 26 décembre 1967 "portant règlement du service de garnison", RSG). Further service regulations are specific to each army and each establishment (règlement intérieur). The general regulation from 1967 determines, for example, the organisation of service within a garnison, security measures, control measures, military ceremonials and military honours, etc. Interministerial instructions (prepared by the SGDN), instructions of the Minister of Defence or the EM A determine the details and "circulaires" indicate how to apply these rules. With respect to the legal nature of these regulations one should bear in mind that decrees and instructions are binding, while "circulairesare not.

VI. Sanctions 1. Disciplinary Law a. Disciplinary Power Disciplinary power and measures are regulated by three main texts: the General Statute of the Military from 1972, the Decree No. 75-675 of 28 July 1975 Regulation of General Discipline in the Armed Forces (RDGA), 95 and the Code of Military Justice (details are regulated by a long list of secondary decrees applying in the different corps of the armed forces). Article 27 SGM indicates that "without prejudice of penal sanctions which they can engender, faults committed by soldiers expose them to: 1. disciplinary punishments, 2. professional sanctions, and 3. statutory sanctions. Disciplinary punishments can be taken only by the Minister of Defence or the military authorities specially nominated in every unit for that purpose.96 95 96

Which has recently been modified by Decree No. 2001-537 of 20 June 2001. Compare C. Ben Amor, L'exercice du pouvoir disciplinaire au sein des armées, (1999) 2

Droit et Défense, p. 43.

Military Law in France

319

According to Article 34 R D G A , there are three levels of command which are invested with disciplinary powers: the military authority of the first level (formerly the chief of corps), the military authority of the second level, and the Minister "in charge of the armies" or the military authority of the third level. The disciplinary powers of the Minister of Defence are in practice operated by eight authorities of the central administration: the three Chiefs of Staff of the Armed Forces, the Director General of the National Gendarmerie, the Delegate General of Armament, the Director of Legal Affairs, and the Central Directors of the Health and Petrol Services. Each of them exercises the power of the Minister within his own field of competency. Professional sanctions (Article 27 (2) SGM) and the conditions under which they can be pronounced are determined by decree. They can consist in a partial or total, temporary or permanent withdrawal of a professional qualification. Only personnel having such qualifications and exercising specific activities e.g. on board of submarines, linked to the moving of aeroplanes, or in the medical field can be subject to these professional sanctions. 97 Statutory sanctions are enumerated by Articles 48 SGM (for career soldiers) and 91 SGM (for non-career soldiers). According to Article 48 SGM, they can be pronounced for professional insufficiency, habitual misbehaviour, serious fault in service or against discipline, fault against honour or condemnation to imprisonment. The Conseil d'État has recently decided that a soldier who by negligence exposes the men placed under his authority to danger commits a serious fault which justifies a statutory sanction. 98 b. Criminal Law and Disciplinary Law According to Article 27 SGM, military personnel fall under the common penal law as well as under the dispositions of the "Code de justice militaire". Without prejudice to penal sanctions, faults committed by soldiers expose them to disciplinary punishments, professional sanctions and statutory sanctions. Article 30 R D G A establishes the same principle: the same fault may engender cumulatively a disciplinary punishment, a professional sanction, a statutory sanction, and/or a penal sanction. Disciplinary action is independent from penal action, which means that a penal sanction does not necessarily provoke a disciplinary sanction, but the absence of penal proceedings does not prevent a disciplinary punishment. Disciplinary arrest is not subtracted from imprisonment under penal law.

97

See B. Thomas-Tual, Statut des militaires, (1996) 195 Juris-Classeur administratif, p. 15.

98

Compare CE, 7 February 2001, Thomas.

320

Jörg Gerkrath

c. The Purpose of Disciplinary Law The declared purpose of French military disciplinary law is to punish negligence or failures in duties (Article 30 (1) RDGA). 9 9 The Conseil d'État decided that in order to come under disciplinary law, a fault must have been committed in service or must be likely to have an influence on the service.100 d. Disciplinary Measures According to Article 31 R D G A , there are two lists of disciplinary punishments, according to military rank. For officers, four different measures are available: warning, reprimand, arrest, and blame. For ordinary soldiers ("militaires du rang"), the available measures are: warning, confinement, and arrest. Article 32 R D G A adds furthermore the withdrawal of "first class" distinction and reduction of rank, which can be pronounced in addition to the disciplinary punishments in the case of very serious faults committed by ordinary soldiers. The duration of the arrest which may be applied depends on the level of authority taking the decision (see Article 34 RDGA). Arrest may last up to 40 days (if decided by the Minister of Defence himself), and can be doubled by isolation for half of the arrest time if the fault was very serious and falls under penal law, or if the service member constitutes a danger to his comrades (Decree No. 85-914 of 21 August 1985). Besides these disciplinary punishments, there are also statutory sanctions which may be pronounced, according to Article 48 SGM, for professional insufficiency, recurrent misbehaviour, serious fault in service or against discipline, fault against honour or in case of a sentence of imprisonment not implying the loss of grade. Three types of such statutory sanctions are defined by Article 48 SGM for career soldiers: removal from the promotion scheme, withdrawal of occupation by placing in the situation of forced leave (for a maximum of three years, see Article 49 SGM), and removal from the cadres by disciplinary measure (Article 50 SGM). In case of serious fault by a career soldier, he can be immediately suspended (Article 51 SGM). Slightly different sanctions apply to volunteers (Article 91 SGM). They can de degraded or even dismissed. A career soldier sentenced for a crime will automatically lose his rank (Article 79 SGM and Article 384 Code de justice militaire).

99 100

"Le manquement au devoir ou la négligence entraînent des punitions disciplinaires". CE, 21 January 1994, M. Hotte.

Military Law in France

321

e. Disciplinary Law and the European Convention on Human Rights France has issued a reservation to Articles 5 and 6 ECHR concerning the disciplinary regime within the armed forces. This reservation indicates that Articles 5 and 6 shall not be understood as preventing France from applying Article 27 SGM and Article 375 Code de justice militaire. f . The Disciplinary Procedure and Legal Remedies The main elements of the disciplinary procedure are fixed by Articles 33 to 39 of Decree No. 75-675 of 28 July 1975 - General Regulation on Discipline in the Armed Forces, which has recently been modified. 101 Several guarantees are given to soldiers by Article 33 RDGA. 1 0 2 The disciplinary procedure starts with the discovery of a fault. Every soldier has the right and even the duty to point out faults committed by his subordinates or by soldiers placed below him in the ranking and to request their punishment. There is no right to point out wrongdoings of peers in rank or superiors. The demand of punishment is sent to the Chief of Corps of the person who committed the fault. After hearing the soldier, the Chief of Corps will verify the accuracy of the facts and determine the ground for the accusation. He can decide for himself on the punishment, within the limits of his disciplinary powers, or submit a demand of punishment to a superior military authority. The soldier has the right to defend himself before any punishment is applied. This right to defence may be exercised orally, or in written form if the disciplinary measure is taken by an authority placed above the Chief of Corps. Punishments may be applied only according to a chart fixed by edict. The soldier has a right to complain (droit de recours), which is established by Article 13 R D G A and constitutes the procedure of appeal in the field of disciplinary measures. There is also the possibility of hierarchical control of the disciplinary measure. According to the case law of the administrative courts, soldiers also have a right to bring an action against disciplinary measures which are registered in their individual file.103 Measures which are not registered, however, like a simple warning, cannot be challenged by such a claim.104

101

Compare Decree No. 2001-537 of 20 June 2001, JORF 23 June 2001, p. 9999.

102

Cp. S. Salon, Militaires: nouvelles garanties, (2001) 205 Cahiers de la Fonction publique, pp. 24-25. 103

See CE Ass. 17 February 1995, Hardouin, CE 12 July 1995, Mauffroy.

104

CE 8 February 1999, M. Etienne.

322

Jörg Gerkrath

This is due to an important change in the case law of the Conseil d'État. Until 1994, the CE considered disciplinary punishments as "internal measures" ("mesures d'ordre intérieur"). It recently abandoned this position, however, taking into account the fact that disciplinary punishments may affect a soldier's rights to a significant extent. Article 13 of the ECHR also played an important role in the argumentation developed by the Commissaire de gouvernement Patrick Frydman in order to convince the Conseil d'État to change its jurisprudence. The change introduced by a judgement in the Hardouin case of 17 January 1995, concerned a soldier in the navy who had been submitted to 10 days of arrest for having been drunk. The complaint must be lodged with the administrative courts (Tribunal administratif) and directed against the decision of punishment. The administrative courts will then apply their usual criteria of legality of administrative acts ("recours pour excès de pouvoir"). The judge may annul the act for being illegal (lack of competence, violation of procedure, etc.) or for manifest error of appreciation ("erreur manifeste d'appréciation").105 Since 1 September 2001, the situation has however been modified. Now, the service member must address his complaint first to a "commission préalable des recours" before he can bring a complaint to the administrative court. The commission has no power to decide, but will give a recommendation to the Minister of Defence, who may either reject the complaint or agree to it completely or partially.106 g. Representation of the Armed Forces during Disciplinary Proceedings Disciplinary punishments are normally taken directly by the military authorities without the intervention of any council or commission. The General Regulation on Discipline in the Armed Forces, however, imposes the obligation to consult a disciplinary council ("conseil de discipline") if the military authority invested with the disciplinary power wants to apply a reduction in rank or the withdrawal of first class distinction (Article 32 RDGA). The consultation of a disciplinary council is also necessary if a non-career soldier desires to be released from service before the end of the contractual period due to disciplinary punishment e.g. in the case of one or several periods of arrest (Article 38 RDGA). The composition of the disciplinary council depends on the rank of the soldier (Article 39 RDGA). It always comprises five members and is chaired by an officer. 105 Compare N. Belloubet-Frier, Contrôle par le Conseil d'État de la légalité des sanctions disciplinaires dans les armées, (1995) Recueil Dalloz, Jurisprudence, p. 381. 106

See Decree No. 2001-407 of 7 May 2001, JORF 11 May 2001, p. 7486.

Military Law in France

323

According to Article 28 RDGA, statutory sanctions always require the intervention of a council of enquiry ("conseil d'enquête") and professional sanctions must be preceded by the consultation of a particular commission ("commission particulière"). The organisation and the functioning of these councils and commissions are governed by special decrees.107 h. Measures of Commendation There is a long list of measures of commendation which may be awarded according to Articles 26 to 29 RDGA: decoration, citation, congratulation, diverse diplomas or insignia, nomination to the first class of the soldier's corps, certificates etc.

2. Military Criminal Law a. General Issues French military criminal law traditionally oscillated between two inclinations: to ensure that the law is the same for everybody, and to take into account the distinctiveness of the military function with its particular constraints and risks. Napoleon Bonaparte referred to the first tendency, saying: "There is only one justice in France; you are a French citizen first, and then a soldier".108 Nevertheless, military distinctiveness served for a long time as the basis for a particular regime of military justice which inspired Georges Clémenceau (1841-1929) to make the famous remark "Military justice is to justice what military music is to music". There still is a special "Code de la justice militaire" (Code of Military Justice) which is appended to the "Code de procédure pénale". This Code has, however, undergone several important reforms since 1965 in order to assimilate the soldier to the citizen (at least in peace-time) without harming the interests of the armed forces. The latest reform was realised by a statute on 10 November 1999.109 This statute has a triple objective: to align the procedure which applies in the military jurisdictions to the one which applies in ordinary courts, to group at one single court the different procedures related to infractions committed by members of the armed forces abroad, and to respect the

107

See Decree No. 74-385 of 22 April 1974 (modified by Decree No. 78-716 of 28 June 1978) and Decree No. 79-1088 of 7 December 1979. 108 "La justice est une en France; on est citoyen français avant d'être soldat". 109

Loi No. 99-969, 10 November 1999, JORF 11 November 1999.

324

Jörg Gerkrath

minimal dispositions destined to guarantee the distinctiveness of the armed forces. There is now one single court {"le Tribunal aux armées de Paris") competent for all infractions committed by a member of the armed forces abroad. The rights of defence in the military have been strengthened. The right to appeal is exercised before the "cour d'appel de Paris" which is a civilian court. b. Relation to General Criminal Law Soldiers must comply with the ordinary penal law and the Code of Military Justice, which contains a number of special crimes and infractions of military nature, e.g. desertion, insubordination, treason, etc. (Articles 397-476). Soldiers must comply with both, but the dispositions of the Code of Military Justice apply only to military personnel and to those persons mentioned by Articles 59 to 66 of the Code. These are in particular civilian members of the staff of the armed forces (Article 60), or those who are enlisted on the roll of a ship or aircraft of the armed forces (Article 63), and prisoners of war (Article 63). Furthermore, Article 65 enlarges the competence of the military court to culprits or accomplices of infractions directed against the armed forces (Article 65). c. Military Criminal Courts Since November 1999, there is only one special military court in Paris (Tribunal aux armées de Paris) which is competent only to try transgressions committed abroad by members of the armed forces. For the rest, 37 specialised chambers have been created within the ordinary courts in order to judge soldiers in peace-time for infractions committed in the execution of their duties and for military infractions as defined by the Code of Military Justice. In time of war, special courts may be created (Article 1 Code of Military Justice). There have been two special military courts created in the past, both linked to the Algerian Crisis in 1961-1962. The first military court was created by a decision of General de Gaulle on the basis of Article 16 of the Constitution in order to judge the culprits and accomplices of crimes and infractions against the safety of the state and the military discipline. The second one was instituted by an ordinance of 1 June 1962, in order to judge "certain infractions committed in relation with the events in Algeria".110

110

See CE, 2 mars 1962; Rubin de Servens, and CE, 19 October 1962; Canal, Robin et

Godot, Grands arrêts de la jurisprudence

administrative,

(Paris, 1999), pp. 586 et seq.

Military Law in France

325

d. Relationship between Civilian and Military Courts In peace-time, the military court in Paris is only competent to try infractions committed abroad. Ordinary civilian courts judge all common infractions committed by soldiers on French territory. Military infractions or infractions committed in the execution of service fall under the competence of the specialised chambers which have been created (Code de procédure pénale, Articles 697 et seqq.). e. Special Rules with respect to the Legal Procedure and the Sanctions System Since the two main reforms of July 1982 and November 1999, most of the formerly existing special rules have been abolished. Three major differences persist: an active soldier cannot be put under judicial control (the military authority is considered to be able to exercise sufficient control over the soldiers in order to make sure they will appear in court on the day of trial), the public may be excluded from judicial debates, and the popular jury in the Cour d'assises may be put aside if there is a risk that a secret relevant to the national defence may be compromised. Articles 383 to 396 Code of Military Justice determine the sanctions which can be applied by the military courts. There are only two types of special sanctions: discharge ("destitution") and loss of rank (Article 385). f . The Military Prosecutor The civilian prosecutors (procureurs de la République) can exercise their function with regard to both civilians and soldiers. There is no special category of military prosecutors. However, the prosecutor, his or her substitute, and the instructing judge at the " Tribunal aux armées de Paris" are detached from the judiciary in order to exercise their military judicial functions. Their attribution depends on the Minister of Defence alone. At the difference to the ordinary jurisdictions, the prosecutor in charge of the military prosecuting office does also exercise the attributions of the chief of the military tribunal.111 g. Justification by Superior Orders This question is governed by Article 122-4 NCP (Nouveau Code Pénal).112

111 See J. Stern, Le Tribunal aux armées de Paris, (2002) 202 Revue de la nationale, p. 59.

Gendarmerie

112 "N'est pas pénalement responsable la personne qui accomplit un acte prescrit ou autorisé par des dispositions législatives ou réglementaires. N'est pas pénalement res-

326

Jörg Gerkrath

h. Sanctions for Non-Compliance with International Humanitarian Law Non-compliance with international humanitarian law is sanctioned by ordinary penal law (Nouveau Code Pénal) and by the General Regulation of Discipline in the Armed Forces. The Code Pénal contains references to most of the crimes and infractions defined by the international conventions on international humanitarian law, but not always by using the same terms or definitions (cf. e.g. Articles 211 (1) on genocide, 212 (1) on deportation and slavery, 222 (1) on torture, 224 (1) on taking of hostages, etc.). An important lacunae still exists, however. The French criminal law does not recognise the notion of war crimes as defined by the statute of the ICC and up until now has sanctioned such crimes according to common criminal law.113 Article 9 (1) RDGA refers to respect of the rules of public international law applying to armed conflicts, defining in detail the different prohibitions. Since January 2001, a "Manuel de droit des conflits armés" has been distributed to the military. This handbook is written like a dictionary, giving definitions of all the war crimes and infractions with direct references to the pertinent conventions (Geneva, The Hague, etc.).

i. Ratification of the Rome Statute of the International Criminal Court In order to ratify the Rome Statute of the ICC, the French Constitution had to be amended according to a decision of the French Conseil Constitutionnel of 22 January 1999 (Decision No. 98-408 DC). The Conseil found Article 27 of the Statute contrary to the particular rules of responsibility laid down by Articles 26, 68, and 68 (1) of the French Constitution for the President, Members of the Government, and Members of Parliament. The amendment was introduced in July 1999 in the form of a new Article 53 (2) of the Constitution, allowing the Republic to recognise the jurisdiction of the ICC under the conditions laid down by the Rome Statute. An act of Parliament, adopted on 30 March 2000, formally authorised the ratification of the Rome Statute, and this was effected on 9 June 2000.114

ponsable la personne qui accomplit un acte commandé par l'autorité légitime, sauf si cet acte est manifestement illégal." 113 Senator Robert Badinter announced on 16 December 2002 his intention to give in a proposal for a statute in order to introduce the definition of war crimes into the French "Code Pénal". See Le Monde, 18 December 2002. 114 France filed the following declarations: I. Interpretive Declarations: 1. The provisions of the Statute of the International Criminal Court do not preclude France from exercising its inherent right of self-defence in conformity with Article 51 of the UN-Charter.

Military Law in France

327

VII. Regulations Governing Guard Duties The regulation of guard duties creates a number of legal problems in France. Some of the special military regulations appear to be (at least partly) contrary to the general penal law. At present, the rules are determined by the following sources: the "Nouveau Code ΡέηαΓ Articles 122 (4) to 122 (7), the General Regulation of Discipline in the Armed Forces Article 25, Decree No. 67-1268 (modified) "portant règlement du service de garnison" (RSG), an instruction of the EMA No. 999/DEF/EMAIOL/2 of 14 May 1985 "relative aux gardes et 2. The provisions of Article 8 of the Statute, in particular paragraph 2 (b) thereof, relate solely to conventional weapons and can neither regulate nor prohibit the possible use of nuclear weapons nor impair the other rules of international law applicable to other weapons necessary to the exercise by France of its inherent right of self-defence, unless nuclear weapons or the other weapons referred to herein become subject in the future to a comprehensive ban and are specified in an annex to the Statute by means of an amendment adopted in accordance with the provisions of Articles 121 and 123. 3. The Government of the French Republic considers that the term 'armed conflict' in Article 8, paragraphs 2 (b) and (c), in and of itself and in its context, refers to a situation of a kind which does not include the commission of ordinary crimes, including acts of terrorism, whether collective or isolated. 4. The situation referred to in Article 8, paragraph 2 (b) (xxiii), of the Statute does not preclude France from directing attacks against objectives considered as military objectives under international humanitarian law. 5. The Government of the French Republic declares that the term "military advantage" in Article 8, paragraph 2 (b) (iv), refers to the advantage anticipated from the attack as a whole and not from isolated or specific elements thereof. 6. The Government of the French Republic declares that a specific area may be considered a "military objective" as referred to in Article 8, paragraph 2 (b) as a whole if, by reason of its situation, nature, use, location, total or partial destruction, capture, or neutralization, taking into account the circumstances of the moment, it offers a decisive military advantage. The Government of the French Republic considers that the provisions of Article 8, paragraph 2 (b) (ii) and (v), do not refer to possible collateral damage resulting from attacks directed against military objectives. 7. The Government of the French Republic declares that the risk of damage to the natural environment as a result of the use of methods and means of warfare, as envisaged in Article 8, paragraph 2 (b) (iv), must be weighed objectively on the basis of the information available at the time of its assessment." II. Declaration Pursuant to Article 87, paragraph 2 "Pursuant to Article 87, paragraph 2, of the Statute, the French Republic declares that requests for cooperation, and any documents supporting the request, addressed to it by the Court must be in the French language." III. Declaration under Article 124 "Pursuant to Article 124 of the Statute of the International Criminal Court, the French Republic declares that it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in Article 8 when a crime is alleged to have been committed by its nationals or on its territory."

328

Jörg Gerkrath

patrouilles dans les zones militaires en temps de paix", and finally in the field of upkeep of public order, an inter-ministerial instruction No. 500/SGDN/MTS/ OTP of 09 May 1995 "relative à la participation des forces armées au maintien de l'ordre".

1. Powers of Guards towards Military Personnel as well as towards Civilians Military guards exercise their competences according to the instruction of the EM A of 14 May 1985 "relative aux gardes et patrouilles dans les zones militaires en temps de paix". This instruction concerns especially conduct vis-à-vis intruders (Article 10 (4)), and the control at the entrances of military establishments (Article 14). The use of arms is allowed in the case of aggression which cannot be contained by other means. Within "sensitive military zones", the competences are different (Article 25). In this case, guards are entitled to deny access whether they are themselves inside or outside of the military zone. In any case, the rules of the Code Pénal concerning legitimate defence will apply. The question whether foreign soldiers may exercise guard duties on French territory towards French civilians is not easy to answer. The situation under the Schengen Agreement might be considered as being comparable. Article 41 of the Implementation Convention of 19 June 1990, provides for policemen to continue "hot pursuit" into the territory of another member state as long as certain conditions are respected. However, this action is subject to modalities determined by declarations issued by the member states on the basis of Article 41 (9). The French declaration and the bilateral agreements concluded with neighbour states do not allow foreign police officers to arrest individuals on French territory in any case, nor to enter private residences or places which are not open to the public. Thus, the Conseil constitutionnel could, in its decision of 25 July 1991, consider the Schengen agreement not to have introduced any transfer of sovereignty.115 To allow foreign police officers or foreign military to arrest individuals would require a constitutional amendment. Service regulations of guard duties are determined by the internal regulations of each military site (Règlement intérieur de garnison) as well as the instruction of the EMA No. 999/DEF/EMA/OL/2 of 14 May 1985 "relative aux gardes et patrouilles dans les zones militaires en temps de paix".

115

See Décision No. 91-294 DC du 25 juillet 1991.

Military Law in France

329

2. Performance of Guard Duties by Soldiers of Foreign Armed Forces Within the Eurocorps, guard duties are exercised by all participating armed forces. Their competences as well as the question of carrying and use of arms are governed by French law as far as their national law is not more restrictive (e.g. rules on legitimate defence).

3. The Rules Concerning the Carrying and Use of Arms and other Military Equipment The carrying of arms (personal or official) is governed by Article 25 RDGA. Weapons are normally carried only when wearing uniform, unless there is a special instruction. The carrying of personal arms during service is forbidden, and subject to the general law out of service. The question is whether the use of arms by soldiers carrying out guard duties in peace-time is governed by the general penal law (Nouveau Code Pénal), or by special rules like Decree No. 67-1268 (RSG) and the instruction of 14 May 1985. These special rules might have become simply illegal as far as they differ from the general penal law (Articles 122-5 NCP). The power of guards to use arms is governed by Article 13 of the RSG and Articles 10 (4) and 25 (1) of the instruction. The rules are different whether the guard is protecting a normal military zone or a "zone militaire sensible" (ZMS). In the normal situation, the guard is entitled to give alert only if an intruder does not comply with his instructions. In case of attack, the guard has the duty to respond in a proportionate manner. The guard may use his firearm without pronouncing the usual warnings in case of serious and immediate aggression which can not be contained by other means (Article 10 (4), instruction). Within a ZMS, Article 13 (2) of the Decree of 1967 (as well as Article 25 (1) of the instruction) contains rules which must be considered as illegal. These dispositions entitle the guard ("sentinelle") to open fire within a sensitive military zone if an intruder does not stop after being asked to three times ("Halte! Ou je fais feu!"). Legitimate defence according to the NCP requires, however, that either aggression or a crime be in progress, that the use of a firearm must be necessary, and the force and measures used must be proportional. Within these "Zones militaires sensibles" the use of arms is thus governed by rules which are partly inconsistent with the general penal law. As long as no special statute has been adopted, the general penal law must apply. Hence, the defence action - especially in order to interrupt a crime or infraction against a good - must not be disproportional and must not be an intentional homicide (Article 122-5 NCP).

330

Jörg Gerkrath

At night, within an inhabited place, legitimate defence is however presumed (Article 122-6, NCP).

VIII. Legal Reforms with Respect to Multinational Operations and Structures 1. Pertinent Legislation France has not enacted any special legislation dealing either with multinational units or multinational operations since 1990. According to the Ministry of Defence and the Ministry of Foreign Affairs, there seems to be no awareness of a need for such special legislation. There is only one particular point which has been modified recently (June 2001) in the context of a more general modification of the General Regulation on Discipline in the Armed Forces (RDGA from 1975).116 One of the modifications concerns the designation of the military authorities entitled to exercise disciplinary power "including during external operations" (Article 5). This change does not have, however, a direct consequence on the relationship between French soldiers and foreign commanders, because French military are always placed under French command (COMELEF, "commandement des éléments français"). A ministerial edict (arrêté ministériel) may define for each OPEX (opération extérieure) the authorities invested with disciplinary power. For the moment, only one such edict has been published. It determines the authorities of the highest level (troisième niveau) and mentions amongst them the commander of French forces located abroad (Article l).117 It clearly results from the dispositions of the RDGA, as modified in June 2001, that foreign commanders may do no more than request the punishment of a French soldier. The disciplinary sanction will always be decided upon and applied by French officers according to the rules laid down by the General Regulation on Discipline in the Armed Forces of 1975. This situation has apparently been confirmed (at least indirectly) by a recent judgement of the Conseil d'État, the highest administrative court in France. The Conseil d'État decided that "the state cannot cede the power to grade one 116

See décret No. 2001-537 du 20 juin 2001 modifiant le décret no 75-675 du 28 juillet 1975 portant règlement de discipline générale dans les armées, JORF du 23 juin 2001, p. 9999. 117 Arrêté du 17 juillet 2001 pris en application de l'article 34 du décret No. 75-675 du 28 juillet 1975 portant règlement de discipline générale dans les armées et fixant la liste des autorités militaires de troisième niveau.

Military Law in France

331

of its agents to a third country or to a foreign organisation".118 There can be no doubt, that the position of the Conseil d'État would be very similar with regard to the power to take disciplinary measures.

2. Probability of Future Reforms Neither the Government nor the Parliament seem to have projects or proposals in preparation in order to enact special legislation on the participation of French armed forces within multinational units or operations. The French Government and Parliament do not share the German point of view requiring such specific legislation. Nevertheless, the French army underwent an important reform process in 2001-2002, making the transition from a (partly) conscript army to a fully professional army. This reform was also meant to adapt the French armed forces to new requirements in the field of international peace-keeping and participation in multinational units. During a meeting of the "Conseil Supérieur de la Fonction Militaire" (CSFM) from 27 November to 1 December 2000, the situation of the military abroad (Le militaire à l'étranger) was discussed, and several proposals were made for the improvement of the material and legal situation of French soldiers sent abroad.119 These proposals concern in particular the conditions of payment of a special financial compensation for service abroad, called "indemnité de sujétions de service à l'étranger" (ISSE), the definition of which means "in service" during an OPEX, and finally the obligation of French soldiers to contract a supplementary insurance during missions abroad. These proposals do not concern, however, the specific question of participation within multinational operations or units and, up to now, they have not given rise to any change of the law. The CSFM discussed this topic regardless of the type of mission (short term, permanent stationing, OPEX, etc.). Furthermore, a recent parliamentary report underlines the need for stronger parliamentary control over external military operations. The report did how-

118 Compare CE, 11 October 1999, M. Calleja. The judgement concerned an officer of the French army who had been posted to the U N in order to serve within APRONUC (Cambodia). He challenged the grades given to him by his French superiors because they were much less laudatory than the grading he was given by a representative of the UN. The C.E. indicates, however, that the grading by the French authorities must take into account the elements of information provided by the foreign institution. 119

See Compte rendu synthétique de la 62ème session du CSFM du 27 novembre au 1er décembre 2000.

332

Jörg Gerkrath

ever suggest an amendment of the Constitution (Article 35 on the declaration of war) rather than a legal reform in order to improve the situation.

3. Academic Discussion There is no significant academic discussion regarding the participation of French armed forces within multinational units or operations. There is, however, some discussion about the role of Parliament with regard to external operations of the armed forces. A recent report, presented by Francois Lamy on behalf of the "Commission de la défense nationale et des forces armées" of the National Assembly, claims that the existing parliamentary control over the participation of French troops within external operations is insufficient.120 External operations are indeed a field in which the French Parliament is almost absent. The Lamy report, referring to the situation in Germany, Italy, the USA, the United Kingdom, and Spain, strongly suggested the establishment of a serious control mechanism for the Parliament on external operations. Accordingly, Article 35 of the Constitution, on the declaration of war, should be adapted to the new context of engagement of forces. This report did not, however, receive widespread support, nor did it stimulate academic discussion.

IX. Select Bibliography 1. Pertinent Legislation a. Main Statutes - Ordonnance No. 59-147 du 7 janvier 1959, Portant organisation générale de la défense - Loi No. 69-1044 du 21 novembre 1969, Relative au Conseil supérieur de la fonction militaire - Loi No. 72-662 du 13 juillet 1972, Portant statut général des militaires - Code des pensions civiles et militaires de retraite, Loi No. 64-1339 du 26 décembre 1964, modifiée - Code de justice militaire, Loi No. 82-621 du 21 juillet 1982, modifiée - Code du service national, Loi No. 97-1019 du 28 octobre 1997, modifiée

120 Rapport d'information No. 2237 sur le contrôle parlementaire des opérations extérieures présenté par F. Lamy, 8 March 2000, pp. 15 et seq.

Military Law in France b. Important

333

Decrees

- Décret No. 67-1268 portant règlement du service de garnison (modifié) - Décret No. 74-338 du 22 avril 1974, Relatif aux positions statutaires des militaires de carrière - Décret No. 74-431 of May 14, 1974 abrogeant certaines dispositions du code de la santé publique et fixant les conditions de coopération du service de santé des armées et du service public hospitalier - Décret No. 75-675 du 28 juillet 1975, Portant règlement de discipline générale dans les armées - Décret 78-194 du 24 Février 1978, relatif aux soins assurés par le service de santé des armées - Décret No. 83-1252 du 31 décembre 1983, Relatif à la notation des militaires - Décret 91-685 du 14 juillet 1991 fixant les attributions du service de santé des armées - Décret No. 96-520 du 12 juin 1996, Portant détermination des responsabilités concernant les forces nucléaires - Décret No. 99-1228 du 30 décembre 1999, Relatif au Conseil supérieur de la fonction militaire - Décret no 2001-537 du 20 juin 2001 modifiant le décret no 75-675 du 28 juillet 1975 portant règlement de discipline générale dans les armées

2. Books and Articles a. Books - ALLOGO-EYA; S., Le contrôle parlementaire sur la politique de défense nationale en France (1958-1978), PhD thesis, Clermont-Ferrand I, 1982. - CHANTEBOUT, Bernard, L'organisation générale de la défense nationale en France depuis la seconde guerre mondiale, Paris, LGDJ 1967. - CHANTEBOUT, Bernard, La défense nationale, Paris, PUF "Thémis" 1972. - De Laubadère, André, Traité de droit administratif, vol. III, Paris, LGDJ 1995, "Défense nationale", pp. 89-182. - ÉCOLE NATIONALE D'ADMINISTRATION, La défense, de la nation à l'Europe, La documentation française, 2 vol., Paris 1996. - JOURDAN, Robert, Le droit pénal appliqué aux forces armées, Éditions La Baule, 1995,400 p. - La France et sa défense, Cahiers français No. 283, oct.-déc. 1997, La documentation française, Paris. - Livre Blanc sur la Défense, Documentation Française, March 1994. - MATHIEU, Jean-Luc, La défense nationale, PUF, collection "Que sais-je?", Paris 1996. - PAC, Henri, Droit de la défense nucléaire, Paris, PUF, Collection "Que sais-je?", 1989, 125 p.

334

Jörg Gerkrath

- PAC, Henri, Droit et politiques nucléaires, PARIS; PUF 1994, 364 p. - PAULMIER, Thierry, L'armée française et les opérations de maintien de la paix, Travaux et recherches de l'Université Paris 2, Paris, LGDJ 1997, 154 p. - POUVOIRS No. 58, La Vème République en guerre, 1991. - POUVOIRS No. 38, L'armée, 1986. - PIROTTE, Olivier (dir.), Sécurité européenne et Défense nationale, La documentation française, 2000. - THOMAS-TUAL, Béatrice, Statut des militaires, Fascicule No. 195, Juris-Classeur Administratif, 1996, 21 p. - WARUSFEL, Bertrand, Le secret de la défense nationale, PhD thesis, Paris V, 1994. - ZORGBIBE, Charles, La France, l'ONU et le maintien de la paix, Perspectives internationales, Paris, PUF 1996.

b. Collections and

Textbooks

- Textes relatifs à l'organisation de la défense, Les éditions des Journaux officiels, Paris mai 2000. - Code du service national, Les éditions des Journaux officiels, Paris mars 1999. - Code de la fonction publique, Dalloz, Paris 2001, (Appendice: "Militaires", pp. 9991060). - Code pratique de la fonction publique, Tome VIII, Fonction militaire, Statuts particuliers des corps militaires, Paris, Berger-Levrault 1990. - Code de la procédure pénale, Code de justice militaire, Dalloz, Paris 2001. - Code des pensions civiles et militaires, Les éditions des Journaux officiels, Paris.

c. Articles - Augier, S., La fonction militaire en temps de paix, Petites Affiches, 12.1.1983. - Bastide, J., De la délimitation des domaines législatif et réglementaire en matière militaire, Revue administrative 1969, p. 481. - Belloubet-Frier, Nicole, Contrôle par le Conseil d'État de la légalité des sanctions disciplinaires dans les armées, Recueil Dalloz 1995, Jurisprudence p. 381. - Ben Amor Christian, L'exercice du pouvoir disciplinaire au sein des armées, Droit et Défense 99/2 p. 43. - Besson De Vezac Marie-Pierre, Les sanctions des violations des Conventions de Genève du 12 août 1949, Droit et Défense 97/3 p. 4. - Chantebout Bernard, Constitution et Défense nationale, Droit et Défense 99/2, p. 5. — , Droit constitutionnel et organisation générale de la défense, Droit et Défense 93/1, p. 4. — , La multiplication des normes juridiques, obstacle à l'efficacité de la défense?, Droit et Défense 97/2, p. 4

Military Law in France

335

— , A propos du décret du 12 juin 1996 sur les forces nucléaires, Droit et Défense 96/3, p. 40. - Chauvency François, Le fonctionnaire en uniforme et les médias, Droit et Défense 98/4 p. 39. — , La doctrine militaire française pour les opérations de maintien de la paix, Défense nationale, 1995, pp. 141-145. - Cohen, Simon, Le contrôle parlementaire de la politique de défense, RDP 1977, p. 377. - Cruzet Bernard, La protection juridique des personnels de la Défense, Droit et Défense 98/1 59. — , Le Conseil supérieur de la fonction militaire, Droit et Défense 95/2 p. 23. - - , L'exercice des cultes dans les armées, Droit et Défense 95/4 p. 28. - - , Le ministre de la défense, Droit et Défense 98/1, p. 4. - Drago, Roland, Le chef des Armées de la Ilème à la Vème République, La Revue administrative, 1996, pp. 377-380. - Duffar Jean, Le "soldat-citoyen", Droit et Défense 95/2 p. 18 - Dutrieux Damien, Pour un participation des militaires à la démocratie locale, Droit et Défense 98/1 p. 36. - Duval Eugène-Jean, Protection sociale des militaires et banalisation des armées, Droit et Défense 99/2 p. 56. - Guillaume-Hoffnung, Michèle, Médiation et fonction militaire : essai de systématisation, Droit et Défense 96/3, p. 4. — , La préparation de la décision militaire sous la Vème République, Administration, mai 1984, p. 54. - Gohin Olivier, Le droit électoral des militaires de carrière, Droit et Défense 98/4 p. 4. - - , Les fondements juridiques de la défense nationale, Droit et Défense 93/1 p. 4. - Hoffmann, Gérard, (Entretien avec), Liberté d'expression et mutations de l'institution militaire, Relations internationales et stratégiques, No. 22, 1996, pp. 19-24. - Jacob, Maxime, Militaire professionnel : militaire de carrière ou militaire sous contrat ?, Revue administrative, No. 313, 2000, p. 60. — , Le besoin d'expression collective des militaires est-il satisfait par les institutions actuelles?, Revue administrative, No. 302,1998, p. 285. - Jourdan Robert, La suppression des tribunaux permanents des forces armées: une réforme inachevée, Droit et Défense 97/2 p. 50. — , Le contentieux pénal de la défense entre tradition et refondation, Droit et Défense 96/2, p. 23. - Julienne, Nicole & Cruzet, Bernhard, La responsabilité pénale des militaires, Droit et Défense 95/3, p. 63. - Kieffer Christophe, L'engagement des forces armées à l'extérieur du territoire, Droit et Défense 94/1 p. 14.

336

Jörg Gerkrath

- Laffaille Franck, La mission d'information parlementaire et le contrôle de l'action gouvernementale, Droit et Défense 98/2 p. 34. -

Défense nationale et cohabitation (juin-août 1997), Droit et Défense 97/3, p. 32.

- Leblanc Henry, La responsabilité juridique des militaires: les limites de l'ordonnance de 1959, Droit et Défense 98/1 p. 63 - Le Gall-Sampaio, Sandrine, L'accès des femmes à la fonction publique militaire, Droit et Défense 98/2, p. 21. - Maillard Nicolas, Le régime juridique du personnel civil de la Défense, Droit et Défense 95/3 p. 22. - Mignot, Bruno, Lien armée-nation et expression des militaires, Défense nationale 1998, p. 82. - Paulmier, Thierry, Les opérations de maintien de la paix: L'incertitude sur les nouvelles missions de l'armée française, Les champs de mars, No. 3, 1998, p. 89. - Planton, Claire, Le Président et la défense sous la cinquième République, Axés 1993, Vol. XIV/3, p. 105. - Rialland, Renaud, Réforme de la procédure des recours contentieux militaires et création de la commission d'examen préalable des recours, Gazette du Palais, 15 août 2001, p. 28. - Robert, Jacques, Libertés publiques et défense, RDP, 1977, p. 936. - Roqueplo Jean-Claude, Défense nationale et ingérence humanitaire armée : une dérive troublante de la fonction militaire, Droit et Défense 2000/1 p. 5 - Stern, Brigitte, La vision française des opérations de maintien de la paix, in Y. Daudet (dir.), L'ONU et les opérations de maintien de la paix, Travaux du CEDIN, Paris, Montchrestien 1997. - Tchériatchoukine Anne, La responsabilité de l'État du fait des dommages subis par le personnel militaire, Droit et Défense 96/1 p. 22. - Viel, Marie-Thérèse, La répartition des compétences en matière militaire entre le Parlement, le Président de la République et le Premier Ministre, RDP 1993, p. 141. - Warusfel Bertrand, Les notions de défense et de sécurité en droit français, Droit et Défense 94/4 p. 11 - Watin-Augouard, Marc, Sécurité intérieure: pluralité et complémentarité des forces, Droit et Défense 97/4, p. 15.

Chapter 6 Military Law in Germany* Georg N o l t e 1 a n d Heike Krieger 2

Table of Contents I. The Historical and Political Background of the German Military Law System 1. Parliamentary Control and the Dignified Role for the Individual Soldier 2. Democratic Control and Rights and Duties of Soldiers a. The Constitution b. The Government c. The Public II. Basic Rules Concerning the Use of the Armed Forces 1. The Mission of the Armed Forces 2. Permissible Operations 3. Operations Permissible under the Constitution a. Restoration of Public Security (Public Order) b. Internal Emergency c. Natural Disaster d. External Emergency e. Humanitarian Aid Operations 4. Limitations on Operations Undertaken Jointly with the Armed Forces of Another Country III. Constitutional Powers 1. The Position of the Head of State 2. The Powers of the Government 3. The Participation of Parliament in the Decision to Deploy the Armed Forces a. The Requirement of Constitutive Approval b. Parliamentary Prerogative to Decide "Essential Matters" c. The Specifics of the Approval Requirement d. Authorisations in Practice

339 339 343 343 344 345 347 347 350 352 353 353 353 353 354 354 355 356 357 358 358 359 360 363

* Sections I.—III. of this Chapter are partly taken from: Georg Nolte, Germany: Ensuring Political Legitimacy for the Use of Military Forces by Requiring Constitutional Accountability, in: Charlotte Ku & Harold K. Jacobson (eds.), Democratic Accountability and the Use of Force in International Law (Cambridge, 2003), pp. 231-253. 1 2

Dr., Professor of Law, University of Göttingen. Dr., University of Göttingen.

338

IV.

V.

VI.

VII.

Georg Nolte and Heike Krieger 4. The Functions of the Minister of Defence 5. The Role of the Military Leadership 6. Parliamentary Control a. The Parliament's Powers to Control the Armed Forces b. Special Forms of Parliamentary Control over the Military c. Court of Auditors and Comparable Institutions The Structure of the Armed Forces 1. The Armed Forces and their Administration 2. Involvement of the Civilian Administration in the Process of Procurement of Material and Supplies Soldiers'Rights and Duties 1. Restrictions of Fundamental Rights of Soldiers a. General Aspects b. Political Neutrality of Soldiers c. Freedom of Association d. Conscientious Objection e. Equal Treatment f. Other Fundamental Rights and their Restrictions 2. Legal Obligations of Soldiers 3. The Power of Command and the Duty to Obey 4. Social Rights of Soldiers and their Families a. Social Rights in General b. Free Medical Care 5. Rules Governing Working Time a. Working Time and Compensation for Overtime b. Recreational Holidays and Special Leave 6. Legal Remedies, in Particular the Right to File a Complaint a. Formal Complaints b. Rights to Petition c. Other Remedies 7. Institutional Representation The Relationship of the Superior to Subordinate Personnel 1. Relationship Between Superior and Subordinate a. Definition b. Duties of the Superior c. Use of Force to Secure Compliance with Orders 2. Subordination of Soldiers to the Command of a Superior of Foreign Armed Forces 3. Service Regulations and their Legal Nature Sanctions 1. Disciplinary Law a. Disciplinary Power b. Relation to Criminal Law c. The Purpose of Disciplinary Law d. Disciplinary Measures e. The Disciplinary Procedure and Legal Remedies aa. Procedure for Minor Sanctions bb. The Structure of Courts for Military Law (Wehrdienstgerichte) . . cc. Procedure for Sanctions Imposed by Administrative Military Courts

364 365 365 365 365 366 366 366 367 368 368 368 371 374 375 376 377 378 382 385 385 387 388 388 388 390 391 394 395 395 398 398 398 400 401 402 405 406 406 406 407 408 408 409 409 411 412

Military Law in Germany f. Representation of the Armed Forces during Disciplinary Proceedings g. Measures of Commendation 2. Criminal Law a. Military Criminal Legislation and its Applicability b. Relationship to General Criminal Law c. Military Criminal Courts d. Special Rules with Regard to the Legal Procedure and the Sanctions System e. Justification by Superior Orders f. Sanctions for Non-Compliance with International Humanitarian Law and Ratification of the Rome Statute of the International Criminal Court VIII.Regulations Governing Guard Duties 1. Powers of Guards towards Military Personnel as well as towards Civilians 2. Performance of Guard Duties by Soldiers of Foreign Armed Forces . . . 3. The Rules Concerning the Carrying and the Use of Arms and Other Military Equipment IX. Legal Reforms with Respect to Multinational Operations and Structures . . 1. Pertinent Legislation aa. Law Regulating Guard Duties bb. Bi-national/Multinational Agreements 2. Probability of Future Reforms 3. Academic Discussion X. Select Bibliography 1. Pertinent Legislation 2. Books and Articles a. Books b. Collections and Textbooks c. Articles

339 414 414 415 415 416 416 416 417

418 419 419 421 422 423 423 423 424 424 424 424 424 425 425 426 426

I. The Historical and Political Background of the German Military Law System 1. Parliamentary Control and the Dignified Role for the Individual Soldier In 1949, the new Federal Republic of G e r m a n y did not possess armed forces. 3 G e r m a n y as a whole, East and West, was still under occupation by the four war-time Allies, the United States, the Soviet Union, France, and the United Kingdom. By this time, however, the Cold War h a d begun; the N o r t h Atlantic Treaty was signed in Washington six weeks before the Federal Republic was

3

See generally T. A. Schwartz, America's Germany: John J. McCloy and the Federal Republic of Germany (Cambridge, MA, 1991), p. 113; S. Mawby, Containing Germany (Oxford, 1999), pp. 1, 10; L. Kettenacker, Germany since 1945 (Oxford, 1997), p. 57; D. F. Patton, Cold War Politics in Postwar Germany (London, 1999), pp. 18 et seq.

340

Georg Nolte and Heike Krieger

formally established in Bonn. The creation of the two German states was part of the mobilisation by the Cold War protagonists of their respective forces.4 Nevertheless, the Grundgesetz, the Constitution or Basic Law of the new West German state, contained only two indirect references to the use of armed forces. Article 4 (3) guarantees the right of conscientious objection, and Article 24 (2) permits the integration of the new state into "systems of mutual collective security" (Systeme gegenseitiger kollektiver Sicherheit). These provisions do not, however, presuppose or require the existence of a national army. While the Grundgesetz originally did not provide for the establishment of armed forces, it also, unlike the Japanese Constitution of 1946, did not contain an explicit prohibition against the establishment of an army or against the use of armed force. It only ruled out "aggression" (Article 26). The lack of other specific constitutional rules on the use of force was not accidental. Lawyers have argued that this was simply the result of a lack of a corresponding legal competence of the West German state, since the Allies retained the ultimate power to decide on questions concerning the establishment of German armed forces.5 Domestically, the most important reason for the omission of rules concerning armed forces was the disagreement, at the time, between the main political parties about the future military role of the Federal Republic. The Social Democratic left (SPD) opposed any such role, while the Christian Democratic (CDU) and Free Democratic (FDP) centre-right wanted to preserve at least the option of West Germany participating in a joint Western defence system.6 Thus, in 1949, the future military role of the Federal Republic, if there were to be one, was unresolved. It was only after the outbreak of the Korean War in 1950 that the political mood outside and inside the Federal Republic decisively changed toward organising a West German military contribution to the common Western defence.7 The project of a European Defence Community (EDC), however, failed in

4

C. S. Maier, The Making of 'Pax Americana': Formative Moments of United States Ascendancy, in R. Ahmann et al. (eds.), The Quest for Stability: Problems of West European Security 1918-1957 (Oxford, 1993), p. 389. 5

E. Forsthoff, Rechtsgutachten zu Wehrbeitrag und Grundgesetz, (Institut für Staatslehre und Politik e.V., (ed.)), Der Kampf um den Wehrbeitrag (Munich, 1953), vol. 2, p. 312. 6

Patton, 'Cold War Polities', supra η. 3, p. 205; W. Loth, The Korean War and the Reorganization of the European Security System 1948-1955, in Ahmann et al., The Quest for Stability, p. 465; D. Gosewinkel, Adolf Arndt (Bonn, 1991), p. 283; Kettenacker, 'Germany since 1945', supra n. 3, p. 58. 7

Schwartz, 'America's Germany', supra n. 3, pp. 116, 124; Loth, 'Korean War', supra n. 6, pp. 465-486; Patton, 'Cold War Polities', supra n. 3, p. 18.

Military Law in Germany

341

1954.8 The EDC Treaty would have created a European army with a true supranational command. 9 Once this rearmament option was removed, the Federal Republic acceded to the North Atlantic Treaty. The 1954 Paris Accords provided for the unconditional return to Bonn of all sovereign rights from the Western Allies (except those which concerned Germany as a whole and Berlin which were legally considered two different issues), in exchange for the Federal Republic's commitment to undertake a substantial role in the defence of the West, in particular, to raise armed forces, the Bundeswehr.10 Domestically, the process of rearmament created difficulties. The implementation of the program of rearmament raised some issues about the use of armed forces that are still relevant today. Less than ten years after the Second World War, the prospect of the creation of a new German army met with strong popular resistance in West Germany. This resistance was partly based on the physical and moral exhaustion resulting from the war, which created an inhospitable atmosphere to any idea of rearming.11 The experience of the war had also led to the emergence of a strong pacifist movement. On the left, many feared that the creation of a West German army would further exacerbate the split between the two Germanies. The centre-right parties, on the other hand, generally favoured the creation of an army, given the aggressive actions of the Soviet bloc.12 In this situation, the attitude of the leadership of the Social Democratic Party was important. 13 Despite popular resistance, the opposition party was by the mid-1950s no longer denying the political necessity of a West German army. However, it demanded that the Bundeswehr receive a clear constitutional basis and not be at the sole disposal of the Government, but be placed under a specific regime of parliamentary control. This insistence on parliamentary control reflected not merely the desire to ensure that the opposition would always play an important role in the use of the armed forces, but also a

8 G.-H. Soutou, France and the German Rearmament Problem 1945-1955, in Ahmann et al, 'The Quest for Stability', supra n. 6, pp. 487, 498. 9 On March 29, 1954, the Bundestag passed the Vertrag über die Gründung der Europäischen Verteidigungsgemeinschaft, 1954 BGBl. II, part II, 343, 362; Mawby, 'Containing Germany', supra η. 3, pp. 73, 76; Soutou, 'France and the German Rearmament Problem', supra n. 8, p. 502. 10 Maier, 'Pax Americana', supra n. 4, p. 422; Soutou, 'France and the German Rearmament Problem', supra n. 8, p. 499. 11 For the time before 1952, see generally Loth, 'The Korean War', supra n. 6, pp. 470, 479; Patton, 'Cold War Polities', supra n. 3, pp. 25, 47. 12

Gosewinkel, 'Adolf Arndt', supra n. 6, pp. 253, 280-286; Kettenacker, 'Germany since 1945', supra n. 6, p. 58; Patton, 'Cold War Polities', supra n. 3, p. 21.

13

See Gosewinkel, Adolf Arndt, pp. 280, 384.

342

Georg Nolte and Heike Krieger

vision of democratic accountability as an effective tool to overcome the traditional monarchical or quasi-monarchical prerogative of the Executive to use them. The determination with which this vision was advocated by the Social Democratic leadership can be explained by their interpretation of history, according to which the authoritarian structure of the pre-1933 German State had contributed to the rise of the Nazi regime. The centre-right parties and their constitutional counsellors, on the other hand, were more pragmatic, believing that valid practical reasons still existed for an executive prerogative in this field. Still, the debate in Germany in the early 1950s established that the question of the use of armed forces was to a large extent a question of democratic accountability. This political and historical background explains why, at the time, the question of whether and how to rearm was not merely a political issue but also a constitutional controversy.14 Since the original Grundgesetz had not provided for a West German military role, the Social Democratic opposition applied in 1952 to the Bundesverfassungsgericht (Federal Constitutional Court) for an advisory opinion on whether West Germany could accede to the European Defence Community without a constitutional amendment. This issue became moot, however, after the center-right parties won a two-thirds majority in the parliamentary elections of 1953 which permitted them to change the Grundgesetz. After defeat of the EDC in the French Parliament and signature of the Paris Accords, the Government, to meet Bonn's new NATO obligations, in 1955 secured amendment of the Grundgesetz. New clauses authorised the State to establish armed forces for defence purposes. One of these clauses (Article 59 a) provided that "the determination that a situation which requires defensive action (Verteidigungsfall) has arisen must be taken by the Bundestag (Federal Parliament)." According to a contemporary leading commentator this provision meant that the decision "on war and peace" rested with the Bundestag,15 After the Nazi period and the Second World War, not only the question of whether to establish an army proved difficult, but also that of how the armed forces should be viewed and operated. One of the most influential theories of the underlying causes of the German State's aggressive policies in the first half of the 20th century is the assumption that the military had, at least since the 19th century, acted as an authoritarian and, at least latently, non-democratic institution within the State. This institution had been able to escape both from civilian political control and educated large parts of the population to accept an authoritarian value system, which sacrificed the role and the rights of the individual on

14

See generally Gosewinkel, ibid., pp. 280-374.

15

H. v. Mangoldt and E Klein, Das Bonner Grundgesetz (Berlin, 1964), vol. 2, p. 1126.

Military Law in Germany

343

the altar of collective interest. The Nazi ideology was conceived as the culmination and the eclipse of such thinking. Proceeding from this theory, the founders of the new German armed forces decided to break radically with the past, and to create a military that was firmly integrated with society (inter alia by relying on a conscript army), that was to be fully accountable to civilian political institutions, and which would view the individual soldier as a "citizen in uniform" who was to be treated according to his inherent right to human dignity. A soldier's fundamental and statutory rights should only be restricted insofar as this was strictly necessary to perform the mission of the armed forces. A soldier should also be an active member of the armed forces in the sense that he should be consulted and provided with institutional representation to ensure that his rights were respected. These guidelines of how the new armed forces should perceive themselves and how they should function internally have been developed more fully in the internal regulation of the armed forces on "Innere Führung" (internal leadership) which is a general doctrine according to which soldiers are encouraged to act as "citizens in uniform". 16 Although expected to follow orders (as long as they are not obviously illegal), they are also expected to reflect upon the actual working of the military, to safeguard their rights, and to contribute to the wellfunctioning of the armed forces by their independent thinking. Superiors are trained to lead by example and persuasion, and to respect soldiers as responsible contributors to the military mission. Many constitutional and statutory provisions can be interpreted as an emanation of the principles of "Innere Führung."

2. Democratic Control and Rights and Duties of Soldiers a. The Constitution The Constitution contains a comparatively large number of provisions which deal directly with the armed forces. They will be dealt with in more detail in the following sections. They have in common the purpose to establish armed forces whose mission is clearly defined (see below II. 1.-3.), which are subject to the general rules of democratic accountability (see below 5.-6.), and which guarantee soldiers their rights, subject only to strict functional necessity (see II. below V. and VI.). The constitutional provisions were inserted mostly in 1956 and 1968, that is, at a time when the focus of German politics was both on defence against the Soviet bloc and on the effort to create and to confirm a new 16

See W. Scherer and R. Alff, Soldatengesetz,

§ 6 No. 2.

344

Georg Nolte and Heike Krieger

democratic identity after the experience of the first half of the 20 th century and in particular the Nazi period.

b. The Government The late 1990s saw the active adoption, as a matter of policy, of the use of force under international auspices by the ruling centre-left Social Democratic and Green parties, even without U N Security Council authorisation. These parties won the federal elections in September 1998. Even before their coalition Government entered office a month later, it was confronted with a difficult choice of how to deal with the escalating Kosovo crisis. The previous centre-right German Government had consistently maintained that military action against the Federal Republic of Yugoslavia would only be possible on the basis of an authorisation by the U N Security Council. 17 Given the escalation of the fighting in the area, the massive outflow of refugees, and the unlikelihood that the Security Council would give an authorisation to use military force, the incoming Government, including the MPs of the Green Party and their new Foreign Minister, Joschka Fischer, a former pacifist, agreed on 16 October 1998 to the decision by N A T O threatening the use of force against the Federal Republic of Yugoslavia, provided that there was an authorisation by the Security Council. 18 A few days later, the Bundestag (still with the old majority) undertook a long and soul-searching debate on whether this decision to threaten the use of force without authorisation by the Security Council would be lawful and appropriate. 19 This parliamentary debate in October 1998 was a watershed for most of those who until then had had moral or political objections in principle to the use of military force abroad, and for those who believed that international legality could only be conferred by the UN. When the Government asked for parliamentary approval to participate in N A T O states' use of force against Yugoslavia, if necessary, the Bundestag granted its approval without a long debate. 20 The approval of the Macedonian Operation Essential Harvest (August 2001)

17

Statement by Dr. Klaus Kinkel, German Minister of Foreign Affairs, 14 June 1998 (on file with the author) 18 Deliberations of the Deutscher Bundestag, BT Plenarprotokolle 13/248, p. 23127, Extracts, Bonn, 16 October 1998, reprinted in: Heike Krieger (ed.), The Kosovo Conflict and International Law (Cambridge, 2001), pp. 389 et seq.; more generally: (1998) 68 Archiv der Gegenwart, October 16 1998, p. 43117. 19 Deutscher Bundestag "Plenarprotokoll 13/248", 193 Stenographische Berichte, p. 23127 (16 October 1998); http://www.Bundestag.de/pp/pp.htm. 20 Deutscher Bundestag "Plenarprotokoll 14/6", 194 Stenographische Berichte, p. 357 (13 November 1998); .

Military Law in Germany

345

was also broad-based, although the Government needed the support of the opposition because a number of pacifist MPs in their ranks refused to agree. This show of resistance by some MPs turned out not to be a serious threat to the project since, one month later, the governmental parties received enough support within their ranks for the authorisation of the essentially similar follow-up operation Amber Fox in Macedonia.21 c.

The

Public

The German debate of the early 1990s on the use of the armed forces for UN operations existed on both a political and a legal level. Politically, the 1980s had seen the (re)emergence of a strong pacifist movement which vigorously opposed the decision by NATO to deploy medium range Pershing II missiles on West German territory.22 This movement was supported by large segments of the Social Democratic and Green opposition parties. In a sense, the missile crisis contributed to a reawakening of pan-German consciousness, which was drawn, at first, from the perception that the territory of the two Germanies could become the theatre of a third, and final, world war. Another phenomenon that contributed to this antimilitarist mood was the widening public debate about the Nazi period and the moral guilt and responsibility of the German people for the Third Reich. These two tendencies contributed to a powerful determination, particularly among the left-liberal intellectual and political elite, to draw the "right" lessons from history. Thus, the perception of being threatened by annihilation and the desire not to repeat the deeds of the past crystallised in the 1980s into a strong political force which abhorred the thought of German soldiers ever marching into foreign countries again for any reason. Many proponents of this view saw the Gulf War of 1990-1 purely as a "war for oil," and there were large demonstrations in German cities against the efforts to defend Saudi Arabia and free Kuwait. Although the great majority of the Green Party still reacted negatively to the Allied military build-up in the Gulf, some intellectuals such as Daniel CohnBendit and Hans-Magnus Enzensberger compared the aggression by Saddam Hussein's Iraq to that of Hitler's Germany. Suddenly the sloganistic formula

21

International Herald Tribune, 28 September 2001 p. 4; Frankfurter Allgemeine 28 September 2001, pp. 1 et seq. 22

Zeitung,

S. Layritz, Der Nato-Doppelbeschluss: Westliche Sicherheitspolitik im Spannungsfeld von Innen-, Bündnis-, und Aussenpolitik (Frankfurt, 1992); the constitutional law issues are discussed by P. J. Kuyper and K. C. Wellens, Deployment of Cruise Missiles in Europe: The Legal Battles in the Netherlands, the Federal Republic of Germany and Belgium, (1987) 8 Netherlands Yearbook of International Law, pp. 174-193.

346

Georg Nolte and Heike Krieger

"non-use of force = peace" no longer appeared quite so convincing. Still, the Gulf War did not yet decisively change the political landscape. Thus, when the center-right coalition Government of Helmut Kohl decided in the summer of 1992 to contribute Luftwaffe reconnaissance planes to maintain the UN embargo against Yugoslavia by flying patrols over the Adriatic Sea, the SPD and Green opposition parties in Parliament challenged this decision before the Constitutional Court on 7 August 1992. Initially, this historical-legal background put the Bundesverfassungsgericht in a difficult position. As the proceedings went on, however, roughly from the summer of 1992 to the summer of 1994, the abhorrent situations in many civil wars, in particular in Bosnia, started to change many people's views on the legitimacy of the use of force by German troops. In 1993 the Government decided to send the Bundeswehr to participate in the UN operation in Somalia (UNOSOM II), and it contributed German military personnel to AWACS reconnaissance flights, which guided NATO fighter planes in the Bosnian theatre of operations. Objections to these operations were consolidated with the original case before the Court.23 But UN action in Somalia and NATO's involvement in Bosnia, (undertaken in the former case to thwart the forced starvation of a populace by local warlords and in the latter to stop ethnic cleansing), helped sway public opinion to re-examine its views on the foreign deployment of German troops and predisposed the public to the ultimate decision of the Bundesverfassungsgericht. Another reason why the judgement had a pacifying effect on public opinion was its insistence on rules that would ensure democratic accountability of all decisions involving the use of the armed forces. Indeed, the Court interpreted the Grundgesetz to require every "armed operation" (bewaffneter Einsatz), meaning every use of the armed forces that entailed the possibility of their involvement in armed clashes, to be approved by the Bundestag,24 The Grundgesetz does not explicitly contain such a requirement of parliamentary approval. In this respect, the Constitutional Court stretched the possibilities of constitutional adjudication and ventured into the field of judicial lawmaking.25 23 BVerfGE (Collection of Decisions of the German Federal Constitutional Court Entscheidungssammlung des Bundesverfassungsgerichts) 90, pp. 286 at pp. 287-290; transi, in (1994) 106 International Law Reports, pp. 320 et seq. 24 BVerfGE, 90, p. 286; transi, in (1994) 106 International Law Reports, p. 321; C. Kress, The External Use of German Armed Forces - the 1994 Judgement of the Bundesverfassungsgericht, (1995) 44 International and Comparative Law Quarterly, pp. 4 1 4 - 4 2 6 at p. 420 n. 33 and p. 424. 25

G. Nolte, Bundeswehreinsätze in kollektiven Sicherheitssystemen, (1994) 54 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, pp. 652 at p. 674; Κ. Dau, Parlamentsheer unter dem Mandat der Vereinten Nationen, (1994) Neue Zeitschrift für Wehrrecht, pp. 177 at p. 182.

Military Law in Germany

347

Still, the decision as a whole was solomonic in a political sense - addressing the public's and opposition's concerns and creating new procedural law consistent with those concerns, even though the legal basis of the decision, Article 24 (2), did not demand it. Most importantly, however, this part of the judgement transformed the debate about the use of German forces abroad from the question of "whether" into the question of "how"; from a fixation on the past into an orientation to the future; and from a debate between elite and popular sentiment into a debate on democratic accountability. The public and the media received the judgement with a wide-ranging acceptance, a fact that would have been unimaginable only a few years before. The development demonstrates that the German polity is, by now, able to muster the political will to use the armed forces under international auspices. Although the German armed forces are at present being reviewed and re-conceptualised in many aspects, in particular their structure, military doctrine, technology, and capacities, it is unlikely that the guiding principle of the armed forces - democratic accountability - will be substantially affected by the reform process.26

II. Basic Rules Concerning the Use of the Armed Forces 1. The Mission of the Armed Forces The Grundgesetz contains a number of provisions that concern the military. At first sight, the most important of these provisions resemble those of the US Constitution: the Bundestag decides whether "a situation requiring defence" (Verteidigungsfall) has arisen (Article 115a (1)) and whether "peace should be made" (Article 1151 (3)), and a member of the Government possesses the supreme command (Befehls- und Kommandogewalt) over the armed forces (the Minister of Defence in peace-time (Article 65 a) and the Chancellor once the Bundestag has determined that "a situation requiring defence" has arisen (Article 115b)). The legal situation is a bit more complex, however. The main purpose of a determination of "a situation requiring defence" by the Bundestag is not to authorise the use of arms, but to trigger the powers of domestic emergency legislation and to simplify the proceedings for further emergency legislation, if needed.27 26

See e. g. Common Security and The Future of The Bundeswehr - Report of The Com-

mission to The Federal Government, 27

.

R. Grote, in H. v. Mangoldt, F. Klein and C. Starck, Das Bonner Grundgesetz - Kommentar (4thedn. Munich, 2001) vol. 3, Art. 115aNo. 1.

348

Georg Nolte and Heike Krieger

Specific safeguards to ensure civilian control over the military are: A minister who is responsible to Parliament exercises supreme command (Befehls- und Kommandogewalt) over the armed forces (Article 65 a), a standing parliamentary defence committee with special investigatory powers exists (Article 45 a), and, finally, an ombudsman who investigates and reports on the situation of the soldiers (Article 54 b). In addition to these three specific provisions, the Bundestag possesses general powers of investigation which allow it to require members of government to prepare a report on a particular matter or appear before a parliamentary committee for questioning (Article 45 c). Finally, public opinion and the press are perhaps the most important safeguards ensuring civilian control over the military. The same constitutional rules apply for the use of the military under international auspices. German military personnel do not act only upon orders from their immediate German military superiors, but also operate within UN, NATO, or other international chains of command. With regard to the mission of the armed forces, the initial point of reference must be Article 87 a of the Grundgesetz: In 1968, the Grundgesetz was amended to include Article 87 a (2), which states: "Other than for defence purposes the armed forces may only be employed to the extent explicitly permitted in this Grundgesetz." Since the Grundgesetz does not explicitly provide for external uses of the armed forces except for defence purposes it has been argued that they could not be used for UN peacekeeping or peace enforcement operations.28 Politically, this argument was very powerful, because it was easily comprehensible and coincided perfectly with the critical mood of the 1980s. At closer inspection, however, the argument does not rest on a firm foundation. Article 87 a was inserted into the Grundgesetz in 1968, because the Constitution had been amended to incorporate a domestic emergency rule. At this time, West Germany was not yet a member of the United Nations, and no one thought of the possibility of its armed forces participating in UN operations. The main purpose of Article 87 a (2) was therefore to ensure that the armed forces would not be ordered to act domestically in any manner other than that which was explicitly permitted by the Grundgesetz. There is no evidence that the insertion of Article 87 a (2) was intended to change or in any way restrict the possibilities which were provided for in Article 24 (2), the old collective security clause of 1949.29

28

BVerfGE 90, pp. 286 at p. 316; transi, in (1994) 106 International Law Reports, pp. 321 at p. 325.

29

BVerfGE 90, pp. 268 at p. 356; transi, in (1994) 106 International Law Reports, pp. 321 at 334.

Military Law in Germany

349

In the 1994 judgement, the Bundesverfassungsgericht declared that the United Nations is a legitimate source of international authorisation.30 Once it was accepted that the collective security clause in Article 24 (2) of the Grundgesetz permits the deployment of troops to a "system of mutual collective security," it was clear that the United Nations would qualify, since this organisation is the paradigm of a collective security system. It was more difficult to determine whether NATO acting alone qualifies as a sufficient source of international authorisation for the purposes of German constitutional law. It is true that an inherent characteristic of the concept of collective security, as originally conceived and as compared to that of an alliance, included a potential enemy or disturber of the peace. This concept, however, is not necessarily identical with the term "system of mutual collective security" as it is understood by the Grundgesetz·. In 1949, the demilitarised West German state was desperate to find at least some internationally acceptable form of security. Membership in a common European and/or transatlantic arrangement were possible options.31 The Bundesverfassungsgericht was therefore correct in 1994 to define the term "system of mutual collective security" broadly, as a "system of rules which are designed to secure peace and the establishment of an organisation in which every member possesses an internationally legally binding status and which mutually obliges members to preserve peace and to guarantee security."32 This definition is designed to include NATO, although the Court stressed that, in the cases under review, it only had to decide whether NATO was a "system of mutual collective security" when implementing resolutions by the UN Security Council. Germany's involvement as a member of NATO in the Kosovo conflict called into question even the broad reading of a "system of mutual collective security" as defined by the Bundesverfassungsgericht in 1994, since NATO's actions were not authorised by the UN Security Council. In fact, Members of Parliament from the Party of Democratic Socialism (PDS), heir to the former East German communists, challenged the constitutionality of German participation in the Kosovo campaign on precisely this ground. The Court did not, however, check the merits of this complaint because it held that the MPs did not have standing

30 BVerfGE 90, pp. 286 at p. 353; transi, in (1994) 106 International Law Reports, pp. 321 et seq. 31

W. Matz, Artikel 23, in G. Leibholz and H. v. Mangoldt (eds.), Entstehungsgeschichte der Artikel des Grundgesetzes (Jahrbuch des öffentlichen Rechts, vol. 1) (Tübingen, 1951), p. 222. 32

BVerfGE 90, pp. 286 at pp. 348 et seq.; transi, in (1994) 106 International Law pp. 321 at p. 328.

Reports,

350

Georg Nolte and Heike Krieger

to bring the case to court. 33 In contrast to the situation in the Yugoslavia and Somalia cases, the Bundestag in the case of Kosovo had authorised the deployment, so that the opposition MPs could no longer claim to represent the legal interests of the Bundestag as a whole. Another question is whether the international authorisation on which the deployment of German armed forces is based must be in conformity with international law. Article 26 of the Grundgesetz explicitly prohibits wars of aggression (Angriffskrieg). In addition, Article 25 accords the "general rules of international law" a higher rank than ordinary laws. It is clear that the U N Charter rules on the prohibition of the use of force and on the limits of self-defence are among those "general rules of international law." It is therefore well established that the Grundgesetz obliges the German state to act in conformity with international law when using its armed forces abroad. The two questions of whether NATO acting alone is a "system of mutual collective security" in the sense of Article 24 (2) of the Grundgesetz, and whether NATO's intervention in Kosovo was in conformity with international law, are profound questions of German constitutional law. However, they are unlikely to be decided by the Constitutional Court in the near future. The reason is not because of the existence of a political question doctrine, since such a doctrine does not exist in German constitutional law;34 rather, it is the lack of any potential litigant with the right to sue. Theoretically, it is possible that an individual soldier who is ordered to participate in an operation could file a complaint to the Constitutional Court asserting that his right to life or liberty were being violated or endangered by such an order, but this has not yet happened.

2. General Rules on Permissible Operations Article 87 a (1) of the Grundgesetz reads: "The Federation creates armed forces for the purpose of defence." Article 87a (2) supplements this, saying: "Other than for defence purposes, the armed forces may be employed only to the extent explicitly permitted in this Grundgesetz." Most legal commentators interpret these provisions as embodying the rule that the main mission of the armed forces is "defence". 35 The term "defence," however, is not entirely clear. Some

33

BVerfGE 100, pp. 266 at pp. 268 et seqq.

34

T. M. Franck, Political Questions - Judicial Answers: Does the Rule of Law Apply to Foreign Affairs? (Princeton, 1992), pp. 107-125. 35

N. K. Riedel, Der Einsatz deutscher Streitkräfte rechtliche Schranken (Frankfurt, 1989), p. 60.

im Ausland - Verfassungs- und völker-

Military Law in Germany

351

commentators assert that it covers only the defence against armed attacks on German territory or the territory of an allied power.36 Others think that it covers every form of collective self-defence under Article 51 of the UN Charter, including the ad hoc defence of a state with which there was no alliance beforehand.37 Still others think that defence covers not only the defence of any kind of territorial integrity against armed attack, but also the military protection of nationals or nationals of allies abroad. There are even some legal experts who affirm that the defence of German interests in general is covered by the provision. Finally, some jurists do not think that the defence function is a limitation for uses of the armed forces abroad.38 The debate over the concept of "defence" is important since the term constitutes a limitation on the possible uses of the armed forces. Since the decision of the Constitutional Court on troop deployments for the United Nations, however, the interpretation of the term "defence" is no longer the only decisive factor when determining the possible uses of the armed forces abroad. Article 24 (2) of the Grundgesetz authorises the State to use the armed forces within "systems of mutual collective security." The Court has interpreted this broadly in order to cover not only the UN but also NATO (see above). It appears, however, that a simple multinational unit is not a "system of mutual collective security," since it does not operate on the basis of a "system of rules" which are designed to preserve the peace.39 In contrast to Article 87 a, Article 24 (2) does not oblige (only authorises) the Federal Republic to create an army for the purpose of collective security. Participation in systems of collective security is thus not a constitutionally required mission of the armed forces. This does not mean, however, that such a mission cannot be laid down by simple legislation or by way of international agreement. So far, the Legislature has - by ratifying international agreements which either explicitly refer to the use of the armed forces for collective security purposes, or by taking note of the informal agreements within WEU and NATO to perform the so-called "Petersberg Tasks" - indirectly confirmed that the mission of the armed forces also extends to collective security. The third mission of the armed forces is their domestic use under certain circumstances. Article 87 a (2) clearly establishes the rule that those tasks must 36 K. Ipsen, in Bonner Kommentar zum Grundgesetz (22nd Inst. January 1969), Art. 87 a No. 29. 37 K.-A. Hernekamp, in I. v. Münch and P. Kunig (eds.), Grundgesetzkommentar edn, Munich, 1996), vol. 3, Art. 87 a No. 4. 38 39

(3rd

See in general: Hernekamp, ibid.

BVerfGE 90, pp. 286 at p. 349; transi, in (1994) 106 International Law Reports, pp. 321 et seqq.

352

Georg Nolte and Heike Krieger

be expressly provided for in the Grundgesetz. Such rules for peace-time uses are contained in Articles 35, 87 a (3) and (4), and 91 of the Grundgesetz. These rules provide for the use of the armed forces under certain conditions: in cases of natural catastrophe, threats to the existence of the Federal State or its free and democratic basic order, and in certain functions of the civil administration when the Federal Republic is under armed attack. Taken together, the mission of the armed forces, as defined in the Constitution, is a complex one. There is, however, no general power of the Government, or even of Parliament acting in conjunction with the government, to use the armed forces for any non-prohibited purpose. The limitations on the mission of the armed forces are clearest with respect to its use in the domestic context. Although the Constitutional Court has interpreted the term "mutual collective security system" broadly, the collective security function of the armed forces does seem to provide a limitation on unilateral operations and on operations which are not within the sufficiently dense political and organisational framework of an international treaty-regime. The most important mission, however, "defence," is so far the least clear of the three basic types of mission. It very much depends on the interpretation of the term "defence" what kinds of operations the German armed forces are permitted to perform abroad. An important practical case in this respect is the forcible evacuation of nationals. If this is not done jointly with other countries as a collective security operation, the constitutional legality of such an operation is questionable. In such cases it depends on whether one sees the unilateral operation as an exercise of the defence function. The issue was debated in regard to the operation by German forces to save nationals in Albania in 1997.40

3. Different Kinds of Operations The armed forces may be used for the purposes of defence, collective security, and for those domestic operations which are expressly provided for in the Constitution (Articles 87 a (2) and 24 (2)). The use of the armed forces is expressly permitted in the event of an internal emergency and in the event of natural disasters or humanitarian catastrophes at home. This is a strictly subsidiary

40

See J. Kokott, in M. Sachs (ed.), Grundgesetz (2nd edn, Munich, 1999), Art. 87a No. 18 b; C. Kress, Die Rettungsoperation der Bundeswehr in Albanien am 14. März 1997 aus Völker- und verfassungsrechtlicher Sicht, (1997) 57 Zeitschrift für ausländisches und öffentliches Recht und Völkerrecht, pp. 329 at pp. 343 et seqq.; Κ. Dau, Die militärische Evakuierungsoperation 'Libelle' - ein Paradigma der Verteidigung?, (1998) Neue Zeitschrift für Wehrrecht pp. 99 et seqq.

Military Law in Germany

353

competence. For these cases the Constitution regulates the co-operation between the armed forces and the police forces of the Länder. a. Restoration of Public Security (Public Order) Article 35 (2) of the Constitution provides that "in case of a natural catastrophe or an especially grave accident (Unglücksfall)," a Land may call upon the armed forces. In addition, Article 35 (3) permits the Federal Government to use the armed forces if the "natural catastrophe" or the "especially grave accident" endangers the territory of more than one Land. These provisions show that the Constitution does not permit the use of the armed forces as a general supplementary means to uphold public order. b. Internal Emergency There is, however, one group of cases in which the armed forces can be used for the upholding of public order. Article 87 a (4) of the Constitution states that in order to avert any imminent danger to the existence or the free democratic basic order of the Federation or a Land, the Federal Government may use the armed forces to support the police and the Federal Border Guard in the protection of civilian property and in combating organised and militarily armed insurgents, if the conditions as envisaged in Article 91 (2) are met and the use of police forces and the Federal Border Guard is insufficient. Any such use of the armed forces shall be discontinued whenever the Bundestag or the Bundesrat so demands. Articles 87 (4) and 91 demonstrate that even in a situation of internal emergency, the use of the armed forces is possible only under very limited conditions. c. Natural Disaster In order to deal with a natural disaster or an especially grave accident, a Land may request the assistance of the armed forces (Article 35 (2)). Where the natural disaster or the accident endangers parts of more than one Land, the Federal Government may, insofar as this is necessary to deal effectively with the danger, instruct the Land Governments to place their police forces at the disposal of other Länder, and may use units of the Federal Border Guard or the armed forces in support (see also above Restoration of Public Security). d. External Emergency Article 87 a (3) of the Grundgesetz provides that the armed forces shall have the power, in case of a "State of Defence" or a "State of Tension" to protect civilian property and discharge functions of traffic control insofar as this is neces-

354

Georg Nolte and Heike Krieger

sary for the performance of their mission. Moreover, the armed forces may, when a "State of Defence" or a "State of Tension" exists, be entrusted with the protection of civilian property also in support of police measures; in this event the armed forces shall cooperate with the competent authorities. Since a "State of Defence" and a "State of Tension" must have been, except in the most obvious case, declared by the competent political organs, the powers of this article may not easily be abused. Other cases in which the armed forces may be used for external reasons are not explicitly regulated in the Constitution. The controversy over the legality of these operations has been described above.41 In a nutshell, operations of individual and collective self-defence, as well as humanitarian support within a system of collective security, are permissible. This includes crisis management abroad through peace-keeping and peace-making measures and humanitarian interventions within the framework of the UN or other systems of collective security. e. Humanitarian Aid Operations Humanitarian aid and operations in combination with civilian aid organisations at home and abroad in the form of technical and charitable support (e.g. the provision of medical equipment), as well as the supply of labour capacities (support for harvesting, measures of environmental protection) do not fall within the framework of Article 87 a of the Grundgesetz. These operations are considered permissible although they do not fall into one of the three basic functions of the armed forces. They are regulated by a governmental decree on the "Assistance provided for by the Armed Forces in Peacetime".42 The decree explicitly states that the armed forces do not execute governmental authority in these cases, so that the operations do not interfere with Article 87 a of the Grundgesetz.

4. Limitations on Operations Undertaken Jointly with the Armed Forces of Another Country It is clear that the armed forces may perform their defence and their collective security functions together with the armed forces of other countries. The issue is more problematic with regard to their internal use. The Grundgesetz does not 41 42

See above at II.2. Ministerialblatt des Bundesministeriums der Verteidigung 1988, pp. 270 et seq. and

1991, pp. 391 et seqq.

Military Law in Germany

355

address the issue of calling troops of other countries to help with domestic operations, and there is almost no precedent in this regard. It appears that the main consideration must be whether the use of foreign troops would circumvent the constitutional safeguards against abuse. This means that foreign troops cannot be used in situations in which the German armed forces would not be permitted to act. It must be equally clear that the use of foreign troops must take place under the same preconditions as the use of German troops. If those preconditions are met, there are probably no good reasons to consider the domestic use of foreign troops, including those who operate in multinational units, to be constitutionally prohibited. If those foreign troops were used to exercise governmental authority over German citizens, however, an appropriate legislative authorisation would have to exist. So far, for instance, in cases of disaster relief, foreign troops have not been entitled to exercise governmental authority over German citizens. It is permissible, however, for such forces merely to provide technical support. This was the case, for instance, when in 1974 there was a firestorm in large parts of a National Park in Northern Germany. Whether German troops could be used in domestic emergency situations in other countries is a different question. It is clear that German troops may be used for mere technical help. It is equally clear that German troops may be used for collective security operations even if those concern situations which appear to be purely internal (e.g; Somalia operation UNOSOM II). A collective security operation does presuppose, however, the decision of an organ of a collective security system. Bilateral mutual help would not seem to qualify. How far German troops could be used in non-collective security situations (for instance at the request of a government to come to its aid in a situation of domestic unrest) would seem to depend on whether one adopts a broad or narrow concept of "defence".

ΠΙ. Constitutional Powers The current rules of the German Constitution on the competences and powers of command with regard to the armed forces are usually described as the product of a historical development.43 Until 1918, the military was considered part of the monarchical prerogative. This meant that the monarch possessed a "comprehensive command power" (Oberste Befehlsgewalt), which implied not only the power to issue specific commands, but also the unlimited power to

43

As to this and the following see: Ferdinand Kirchhoff, Bundeswehr, in J. Isensee und P. Kirchhof (eds.), Handbuch des Staatsrechts (Heidelberg 1988), vol. 3, § 78 D I Rn. 11 f.

356

Georg Nolte and Heike Krieger

issue military regulations and to determine the status of personnel. Under the Weimar Constitution, the Head of State (Reichspräsident) possessed a similar power, which was later transferred by special legislation to the Minister of Defence, who was responsible to Parliament. This law, however, did not prevent the re-emergence of the concept of a special power of military command shielded from parliamentary control. This allowed the armed forces to act independently of parliamentary control, the best-known example being the secret cooperation between the Reichswehr and the Soviet Red Army in order to circumvent the disarmament obligations of the Versailles Peace Treaty. This experience of the armed forces acting and being legitimised as "a state within the state" led the drafters of the current rules in 1956 to create a system which is designed to extend, as far as possible, the general rules on parliamentary responsibility and on the control of the administration onto the armed forces. This also implies the abolition of the general concept of "comprehensive command power", and its partition into different specific command functions to which the general constitutional rules apply.

1. The Position of the Head of State The German Head of State is not elected by the people but by a special congress (Bundesversammlung), which is composed of Deputies from the Federal and the Länder Parliaments (Article 54). His functions are, in general, ceremonial. This is the result of the (ostensibly negative) experience with the strong position of the Head of State under the Bismarck and Weimar Constitutions.44 The 1919 Weimar Constitution established that the President of the Republic (Reichspräsident) exercised supreme command over the armed forces. Since the Reichspräsident was directly elected by the people, his position with regard to the military was less subject to parliamentary control by the Reichstag than other members of the executive. Thus, although the Reichspräsident delegated his power of supreme command to the Minister of Defence (who was responsible before Parliament), the German Army (Reichswehr) was able to cooperate with the Soviet Red Army in order to prepare for rearmament in circumvention of the Versailles Treaty. Today, the Head of State is responsible to Parliament only in indirect ways: His acts must be countersigned by the responsible minister (Article 58) and his position is not subject to a vote of non-confidence but only to an impeachment procedure (Article 61). It is a natural consequence of 44

As to this and the following see: K. Schiaich, Die Funktionen des Bundespräsidenten im Verfassungsgefüge, in J. Isensee and P. Kirchhof (eds.), Handbuch des Staatsrechts, (Heidelberg 1987), vol. 2, § 49 D II.

Military Law in Germany

357

this general conception of the role of the Head of State that the position no longer implies a general concept of "comprehensive command power," but only the powers to appoint and dismiss public officials (including members of the military), the power to pardon (again including members of the military), and, finally, representative functions such as conferring honours and choosing the uniforms and insignia of the ranks. All these functions are subject to countersignature. Thus, the position of the Head of State has been divested of all real power over the military, and there remain only a few merely representative functions.

2. The Powers of the Government The competences of the Government regarding the armed forces must be differentiated from those of the Parliament and the Minister of Defence. The armed forces are part of the Executive under the command of the Minister of Defence, who is necessarily a member of the Federal Government. Article 1 (3) of the Constitution was changed in 1956, expressly in order to make it clear that the armed forces are not a power sui generis but a part of the Executive (the amendment substituted the word "executive" for the word "administration"). The German Federal Government operates on the basis of three principles (Article 65 Grundgesetz): 1. The Chancellor has the power to give general political directives {"Der Bundeskanzler bestimmt die Richtlinien der Politik")·, 2. Every minister has the responsibility to lead his ministry within the framework of the general political directives; and 3. Differences of opinion between different ministers are resolved by the Government as a whole. The "general political directives" of the Chancellor bind the individual minister, but they cannot bind members of the administration, including members of the armed forces. The same is true for the decisions of the Government as a whole with respect to differences of opinion between different ministers. The Government as a whole does not possess the power to command the armed forces. This power is reserved to the Minster of Defence (in peace-time, Article 65 a) and to the Federal Chancellor (during an armed attack on the territory of the Federal Republic, Article 115b). The Government as a whole may, however, issue ordinances (delegated legislation) with respect to the armed forces, provided it has been empowered to do so by legislation (Article 80). There is thus no independent right of the Government, including the Minister of Defence, to issue ordinances or other delegated legislation in the absence of a parliamentary statute empowering it to do so. The Government does, however, possess the right to issue mere administrative rules that do not affect the fundamental or statutory rights and duties of soldiers.

358

Georg Nolte and Heike Krieger

3. The Participation of Parliament in the Decision to Deploy the Armed Forces Since 1949, Germany has had a parliamentary system. The chief of the Government, the Chancellor, is elected by a majority in Parliament (Article 63). A majority in Parliament can dismiss the Chancellor by electing a successor. There are only very limited aspects of direct democracy on the federal level. The German governmental system reduces the citizen's official democratic involvement to their right to vote, referenda on Länder boundary changes, and, for party members, to the selection of a party's list and political platform. Individual MPs will therefore not be held accountable by the voters for having voted for or against the deployment of troops. Rather, it is the parties themselves that are held accountable. This does not mean, however, that votes in Parliament on the issue of troop deployment consistently follow party lines. A parliamentary system per se does not necessarily imply or require that the decision to deploy troops be decided by the Parliament itself. The basic rule that a parliamentary majority can topple the Government ensures that the Government remains accountable. Indeed, the Grundgesetz does not contain an explicit requirement that the Bundestag must authorise every troop deployment. The Constitutional Court, however, has interpreted the Constitution so that every "armed operation" (bewaffneter Einsatz) - that is, every use of the armed forces which entails at least the possibility of their involvement in armed clashes - requires a special "constitutive" parliamentary approval by the Bundestag,45 a. The Requirement of Constitutive Approval The Bundesverfassungsgericht invoked historical and systematic considerations in order to show that the constitutional requirement of parliamentary approval was comprehensive and extended to every "armed operation". 46 The historical argument basically consists in the assertion that a provision of both the Grundgesetz, as it existed from 1956 to 1968 (as Article 59 a and replaced by Article 115a in 1968), and the 1919 Weimar Constitution had required parliamentary authorisation for every form of deployment that was conceivable at the time (war and peace, defence). The systemic argument relies on the fact that the Grundgesetz contains a provision that requires the existence of a permanent parliamentary defence committee with investigatory powers (Article 45 b), an-

45

BVerfGE 90, pp. 286 at pp. 387 et seqq; transi, in (1994) 106 International Law Reports,

pp. 321 at p. 349. 46

BVerfGE 90, pp. 286 at p. 387; transi, in (1994) 106 International Law Reports, pp. 321

at 349.

Military Law in Germany

359

other that creates the office of a Parliamentary Ombudsman for the Armed Forces ( Wehrbeauftragte) (Article 45 c), and, finally, that Parliament may not allocate an unspecified budget to the Minister of Defence, but must specifically determine the structure and future development of the armed forces (Article 87 a (1) (2)). In toto, the Bundesverfassungsgericht reasoned, these historical and systemic arguments were evidence that the Grundgesetz conceives the armed forces to be a "Parliament's army" (Parlamentsheer). This, in turn, demanded that every armed deployment of the armed forces abroad, outside the NATO area, must be authorised by Parliament. Although the reasoning of the Constitutional Court sounds attractive, from a legal point of view it is, to put it mildly, courageous. 47 It is one thing to accord Parliament the classical right to declare war; yet it is quite another to decide that every armed troop deployment outside of NATO must be authorised by the Legislature. The fact that the armed forces are subject to stringent parliamentary control (defence committee, Ombudsman, budget law requirements) does not translate into a sufficiently strong legal basis to derive per analogiam an approval requirement for every "armed operation." Given that the Bundesverfassungsgericht placed a strong emphasis on the unique constitutional tradition of Germany and the prophylactic provisions of the Grundgesetz (parliamentary control over the army, its budgetary constraints, etc.), it must be asked whether another country's constitutional court could employ this line of reasoning to conclude that a requirement of parliamentary approval does exist for every armed operation, even though the Constitution contains no explicit rule to that effect. b. Parliamentary Prerogative to Decide "Essential Matters" There is one consideration that may give the German judgement a significance for other countries. An important general feature of German constitutional law consists in the general jurisprudential requirement that Parliament must take the most important decisions itself.48 In a parliamentary system, more than in a presidential system, the danger exists that the Government can insulate itself from public criticism by using its majority in Parliament to pass legislation that delegates legislative power to the Executive. Taking also into account the importance of parliamentary elections as the only means of direct control of 47

See, e.g., Nolte, 'Bundeswehreinsätze in kollektiven Sicherheitssystemen', supra η. 25, at pp. 683 et seq.\ G. Roellecke, Bewaffnete Auslandseinsätze - Krieg, Außenpolitik oder Innenpolitik?, (1995) 34 Der Staat, pp. 415 at p. 423.

48

BVerfGE 49, pp. 89 et seqq.; D. P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2nd edn, 1997), pp. 147 at pp. 150 et seq.

360

Georg Nolte and Heike Krieger

the Government by the people, the Bundesverfassungsgericht has strengthened the role of Parliament within the constitutional framework by giving teeth to what is called the "non-delegation doctrine" in the United States.49 In Germany, the non-delegation doctrine has a textual basis in the Constitution (Article 80 (1) (2) of the Grundgesetz). In its jurisprudence, the Court has gone one step further by developing the so-called "rule of essential matters" ( Wesentlichkeitstheorie).50 This rule means that "all essential matters, especially those relating to the exercise of fundamental rights," must be decided in substance by parliamentary legislation - that is, not by the Executive by way of delegated legislation. In its 1994 judgement51, the Bundesverfassungsgericht applied the jurisprudential "rule of essential matters" to the specific issue of troop deployment, although without expressly saying so. A direct application of this rule could not have been achieved without difficulty. This rule's usual application requires, first, that Parliament should decide the substance of the matter by way of formal legislative procedure and, secondly, that it should create general rules. An approval for the deployment of troops, on the other hand, can in practice neither be taken by following any formal legislative procedure, nor does it in any way constitute the creation of a general rule. It is perhaps for these reasons that the Court did not mention the "rule of essential matters" in the 1994 judgement, but rather relied on questionable historical and systemic arguments to justify its requirement of parliamentary authorisation for every troop deployment. c. The Specifics of the Approval Requirement The Bundesverfassungsgericht did not stop at postulating a general requirement of parliamentary approval for "armed operations." Four more specific pronouncements are noteworthy, as follows. Deployments requiring authorisation: According to the Court, all "armed operations" (bewaffnete Einsätze), require parliamentary approval. This does not include the military's involvement in relief deliveries, as long as these do not involve armed operations.52 It does not matter whether the armed operation in

49

L. H. Tribe, American Constitutional Law (3rd edn, New York, 1999), vol. 1, pp. 9 7 7 997. 50

BVerfGE 49, pp. 89 et seqq.-, Kommers, 'Constitutional Jurisprudence', supra n. 47, at pp. 150 et seq.-, G. Nolte, Ermächtigung der Exekutive zur Rechtsetzung, (1993) 118 Archiv des Öffentlichen Rechts, pp. 378 at p. 399. 51

BVerfGE 90, pp. 286 et seqq.; transi, in (1994) 106 International Law Reports, pp. 321 et seqq. 52

BVerfGE 90, pp. 286 at p. 388; transi, in (1994) 106 International Law Reports, pp. 321 at p. 350.

Military Law in Germany

361

question is authorised by the U N or NATO, whether it is a peace enforcement mission or a simple peacekeeping mission, whether it is an operation for the purpose of self-defence, or for any other purpose. Thus, the scope of an "armed operation" requiring parliamentary approval is very wide and includes every operation in which members of the armed forces, while armed for that particular purpose, perform a duty outside the NATO area which entails some minimal risk of taking or inflicting casualties. Urgent deployments: If each and every "armed operation," including selfdefence, requires parliamentary approval, it is necessary to provide for the possibility of emergency situations. The Bundesverfassungsgericht indicated that the Executive may indeed, acting alone, order armed operations in "situations of immediate danger" (Gefahr im Verzug). In such a scenario, however, the Executive must immediately address the Bundestag and seek its approval as soon as possible. Should that approval not be forthcoming, the Government must recall the armed forces if the Legislature demands it.53 A rescue operation by German forces in Albania in 1997 raised the issue of whether it is constitutionally necessary for the executive to receive parliamentary authorisation when the urgent operation has been concluded before the Bundestag could vote. It has been argued that such post hoc authorisations would serve no purpose. 54 This is not convincing, since the Executive is likely to act differently when it knows that it must defend its decision in Parliament. Right of initiative: May the Legislature at any time demand cessation of an operation? Could it demand a change of strategy - for example, not to use ground troops despite its initial approval of them? The Court clearly gave a negative answer. The Court insisted that the Bundestag may not force the Government to deploy troops, and furthermore that it may neither determine decisions concerning "the modalities, the dimension and the duration of the operations, nor the necessary coordination within and with the organs of international organisations". 55 In a parliamentary system, limitations on the parliament's prerogative to decide details of troop deployments are perhaps less meaningful than in a presidential system, since the Legislature also has the power to dismiss the government by electing a new chancellor. Still, the existence of a constitutional rule allocating the entire decision-making power over on-going operations to the Executive provides for a certain buffer against parliamentary influence. While this delimitation of responsibilities between "if"

53

Ibid., at pp. 387 et seq.

54

C. Kress, 'Die Rettungsoperation der Bundeswehr in Albanien', supra η. 40, at p. 356.

55

BVerfGE 90, pp. 286 at p. 389; transi, in (1994) 106 International Law Reports, pp. 321 at pp. 350 et seq.

362

Georg Nolte and Heike Krieger

and "how" is consistent with the general principles of separation of powers in a parliamentary system, it nevertheless assumes a special significance in the context of democratic accountability for the deployment of armed forces. Like the US Constitution, the Grundgesetz accords the Executive an area of independent decision-making in the field of foreign affairs and defence. 56 This Executive prerogative is justified insofar as the special character of these matters requires rapid decision-making and competent assessments of complex situations. 57 Operations of armed forces abroad typically raise such issues. This means, however, that the Legislature is considered to be structurally incapable of assuming full responsibility for decision-making in this field. Indeed, the importance of a coherent implementation of a chosen policy requires that special demands by Parliament should be excluded, since they may endanger the ultimate success of the operation undertaken. If, therefore, the role of the legislature is restricted to the initial authorisation, the question of democratic accountability cannot be answered simply by pointing to the requirement of Bundestag authorisation. On the contrary, as far as questions concerning the conduct of operations are concerned, parliamentary authorisation tends to obfuscate the issue of accountability, since the Executive alone is responsible for decisions taken to carry out an operation once it has been approved by the Bundestag. Form of authorisation: The parliamentary decision to approve armed operations does not have to be taken in the form of the usual legislative process. It suffices that the Bundestag takes a single vote by simple majority on a motion by the Government to approve the deployment. 58 This is probably the most appropriate form for the speedy "yes or no" decision which the Government must procure in order to be able to pursue its military policies. It is also true, however, that not every troop deployment will be of such importance as to require a vote in plenary of the Bundestag. The Court has provided for this possibility by not defining which situations require lesser forms of authorisation, but by allowing the Bundestag to enact general legislation on the procedure for authorisation of troop deployments. 59 It is therefore possible that the power to approve troop deployments in low-level conflict situations could be delegated to a parliamentary committee (though not to the Executive). So far, however, the 56 BVerfGE 68, pp. 1 at p. 89; transi, in (1994) 106 International Law Reports, pp. 364 at p. 375. 57

BVerfGE 68, pp. 1 at p. 106; transi, in (1994) 106 International Law Reports, pp. 364 at p. 385. 58

BVerfGE 90, pp. 286 at p. 388; transi, in (1994) 106 International Law Reports, pp. 321 at p. 350. 59

Ibid., at p. 389; transi, in (1994) 106 International Law Reports, pp. 321 at p. 351.

Military Law in Germany

363

Bundestag has made no effort to pass a German War Powers Act and it is unlikely to do so in the near future. d. Authorisations in Practice Germany does not yet have much practical experience with the use of military forces under international auspices. It has not used its forces under any other international auspices than the UN or NATO. Since the two Germanies only joined the UN in 1973, they had nothing to do with its decision-making with respect to the Korean War, the Suez Crisis, or the Congo. For several domestic political reasons, it was out of the question that the newly reunified Germany participate in operation Desert Storm in 1991. It was only during the Yugoslavian and Somalian crises that German troops started to operate under international auspices. Initially, they acted simply on the basis of Government decisions, but after the Bundesverfassungsgericht decision that parliamentary approval was necessary, the Bundestag gave its consent after the fact.60 Until the Macedonian deployment in 2001, there were no noticeable tensions between Parliament and the Executive with regard to authorisation of the use of the armed forces. It is telling that the Government even consulted the leaders of the parliamentary party groups before deciding on the (unilateral) rescue operation in Albania in March 1997.61 Since this operation was clearly an "urgent deployment" to rescue Germans and other foreigners, it necessitated no prior decision by the Bundestag or consultation with parliamentary leaders. Since, however, the Government had informed and consulted leading MPs before the operation, a leading Government lawyer noted that the Albanian operation had demonstrated a "climate favouring confidence-building measures" 62 in the Bundestag. When it came to approving the participation of German armed forces in the "war against terrorism", several members of the German Bundestag complained that the authorisation for 12 months would be too long.63 Nevertheless, in the end, the Bundestag gave its consent to a rather broad authorisation of the Government to deploy German troops in Asia, North Africa, and the Middle East. The only precondition was, that the armed missions in foreign states would need the consent of the Government of the 60

See generally C. Kress, 'The External Use of German Armed Forces', supra n. 24, at p. 414. 61

C. Kress, 'Die Rettungsoperation der Bundeswehr', supra η. 40, at p. 355.

62

Κ. Dau, 'Die militärische Evakuierungsoperation Libelle', supra η. 40, at pp. 99 et seqq. 63

Stenographische Berichte der Sitzungen des Deutschen Bundestages, 202. Sitzung vom 16.11.2001, pp. 19859 et seq.

14. Wahlperiode,

364

Georg Nolte and Heike Krieger

host state.64 The authorisation was valid for 12 months and had the aim of combating terrorists, terrorist structures, and the support of terrorism by third parties.65 Legal basis for the participation of German troops in the operation "Enduring Freedom" is Article 51 of the Charter of the United Nations in connection with UN Security Council Resolution No. 1368 (2001) of 12 September 2001 as well as UN Security Council Resolution No. 1373 (2001) of 28 September 2001 calling upon all states to support the fight against terrorism.66 It appears that, on the whole, past parliamentary authorisations of troop deployments have not had the effect of restraining the Government. On the contrary, the role of the Legislature has been to enable the Government to go ahead. It is true that most authorisations were not controversial. It is also true that, in the case of Kosovo, the Government had already supported a NATO decision in 1998 to threaten the Federal Republic of Yugoslavia with air strikes before a parliamentary debate took place. The decision to participate in the NATO air strikes against Yugoslavia without authorisation by the UN Security Council, however, could not have been taken by the Government without parliamentary support. The parliamentary debate that preceded this decision was long, earnest, and searching. It was, therefore, a catalyst for public opinion which, until then, had not envisaged German troops acting without Security Council authorisation.

4. The Functions of the Minister of Defence The German Constitution assigns the power of command ("Befehls- und Kommandogewalt") to the Minister of Defence (Article 65 a Grundgesetz). This is to ensure parliamentary responsibility for the leadership of the armed forces and civilian control over the military. Thus, the power of command is not, as under the Bismarck and Weimar Constitutions, given to a Head of State who is not responsible before Parliament. At the same time, the provision ensures that the power of command cannot be delegated to members of the military. The power of command can, however, of course be exercised in the name of the Minister of Defence by officers and staff of the Ministry of Defence. 64

Decision of the German Bundestag on the proposal of the Government to deploy troops in the framework of the operation Enduring Freedom, BT-Drucks. 14/7296 of 7 November 2001. 65

W. Heintschel v. Heinegg and T. Gries, Der Einsatz der Deutschen Marine im Rahmen der Operation "Enduring Freedom", (2002) 40 Archiv für Völkerrecht, pp. 145 at p. 147. 66

Request of the German Government to the Bundestag to authorise the deployment of German troops for the participation in Operation Enduring Freedom, BT-Drucks. 14/7296 of 7 November 2001.

Military Law in Germany

365

5. The Role of the Military Leadership The military leadership is given a special legal position neither by constitutional nor by statutory law. There is no "General Command" or "General Staff" of the German armed forces. This is due to historical experience and to the need to ensure that the military does not form a separate entity which can emancipate itself from civilian and parliamentary control.

6. Parliamentary Control a. The Parliament's Powers to Control the Armed Forces Parliament possesses both generally applicable powers of control vis-à-vis the military and certain special competences.67 Parliament possesses the usual budgetary powers. It has the general power to legislate. It also possesses the right to demand the presence of any minister, including the Minister of Defence, and to put questions to him. Parliament may censure the Government and elect a new Government by a (constructive) vote of no-confidence. It may not, however, dismiss an individual minister, only the Government as a whole is subject to a vote of no-confidence. Special competences of the Parliament vis-à-vis the armed forces include the requisite existence of a parliamentary committee on defence, which has the powers of a committee of inquiry but which must not sit in public (Article 45 a). In addition, the German Constitution provides for a Parliamentary Ombudsperson for Defence ( Wehrbeauftragter des Bundestages) whose mission is both to help Parliament to exercise control over the armed forces and to protect the fundamental rights of soldiers (Article 45 b). In addition, the budget must specifically determine the structure and future development of the armed forces (Article 87 a (1) (2)). b. Special Forms of Parliamentary Control over the Military The Parliamentary Ombudsperson for the Armed Forces (Article 45 b) monitors compliance with the principles of "Innere Führung" and observance of soldiers' rights68. The Ombudsperson is answerable solely to the Parliament, and every soldier, regardless of his or her rank, is entitled to refer his or her 67

See above at III. 3. Gesetz über den Wehrbeauftragten des Deutschen Bundestages (WbeauftrG) of 16 June 1982, BGBl. I, pp. 677 et seqq.

68

366

Georg Nolte and Heike Krieger

matter directly to the Ombudsperson, without fear of any repercussions. Should information about undesirable developments in the armed forces come to the Ombudsperson's notice, he or she will inquire into the circumstances. Important information on the conditions prevailing inside the Bundeswehr is contained in the Ombudsperson's annual report to Parliament, which is available to the general public. c. Court of Auditors and Comparable Institutions The German Constitution provides for an independent Court of Auditors {Bundesrechnungshof - Article 114). The Court of Auditors has the right to choose the areas it wants to review, and there are no limitations, in principle, on its activities within the federal sphere. This includes the area of defence. The use of certain limited secret funds is not subject to review by the Court of Auditors. This exception does not, however, seem to play an important role. There are no other more general legal forms of control, other than those which have already been mentioned. Public opinion should, however, be mentioned, as it is in practice a very relevant form of non-legal control.

IV. The Structure of the Armed Forces 1. The Armed Forces and their Administration It is perhaps a special feature of German constitutional law that it provides for a strict distinction between the armed forces proper, a special military administration which deals with personnel matters and supply, and the general administration as far as it is involved with other military matters (Article 87 b). One reason for the distinction is the division of administrative powers in the German federal system. Since the Länder possess the power, in principle and in most fields, to execute and administer the federal laws, and since military matters must necessarily to a large extent be administered centrally, it was necessary to provide for special rules on the administration of military matters. Although the German Constitution provides for a wide-ranging field of (obligatory and facultative) federal administration in military matters, there are still areas in which the Länder are competent. This is true, for instance, of the administration of the Draft Law and of the Laws on the Protection of Civilians. The areas in which the Länder have powers to administer do not, however, extend to areas which are relevant for the creation and operation of multinational units. Therefore problems of federalism probably do not arise for Germany in the context of multinational units.

Military Law in Germany

367

The second reason for the distinction between the military proper and a special military administration is, again, civilian control of the military.69 Under the Bismarck and Weimar Constitutions, the administration of personnel and supply matters formed an integral part of the armed forces. Today, the Constitution requires that the military proper and the administration of personnel and supply matters be strictly separate. Both are, however, ultimately under the direction of the Minster of Defence. The difference is that, originally, the military proper possessed the power of command vis-à-vis the personnel and supply administration, while today the power of command is restricted to the sphere of the military proper. This means, first, that no military commander may make decisions on the status of the personnel on the delivery of supply by way of command, and, second, that the Minister of Defence is restricted to giving the usual administrative orders and directives to the members of the military administration, and may not issue commands (with their specific legal implications). This is part of a functional differentiation which enables the armed forces to concentrate on their mission, but which also limits their capacity for self-organisation.

2. Involvement of the Civilian Administration in the Process of Procurement of Material and Supplies One of the consequences of the above described constitutional distinction is the fact that a separate civilian administration must be involved in the process of procurement of material and supplies for the armed forces. This raises problems with respect to the creation and operation of multinational units. If a multinational unit operates inside Germany, it may not include an administrative component which is subject to the military command structures as far as it provides services in the area of personnel administration and delivery of supply (at least as far as German soldiers are concerned). If a multinational unit which includes German soldiers operates outside Germany, the question can be raised whether it may include an administrative unit which operates under military command or whether the German forces may use a non-independent foreign military administration for their purposes. In practice, participation of the separate German armed forces' civilian administration in multinational units inside and outside Germany is reached by the formal establishment of committees which participate in the administrative decisions. Although there are as yet

69

M. Baldus, in H. v. Mangoldt, F. Klein and C. Starck, η. 27, Art. 87 b No. 5.

Grundgesetz Kommentar,

supra

368

Georg Nolte and Heike Krieger

no authoritative pronouncements on this issue, the purpose of Article 87 b seems to be to ensure that the German military as such does not develop into a self-sufficient organisation and slip from the control of the Minister of Defence. This danger does not seem to exist in the case of German personnel serving outside Germany. After all, the purpose of the German constitutional rule is not to protect or even to influence organisational structures in other countries. Outside Germany, a different system of military administration is not in competition with the German organisational structure. As far as multinational units operating inside Germany are concerned, the situation is perhaps different since - were the multinational unit to have its own military supply and personnel administration - it would mean that different types of military administration would exist at the same time for German forces on German territory.

V. Soldiers' Rights and Duties 1. Restrictions of Fundamental Rights of Soldiers a. General Aspects According to Articles 1 (3) and 17 a of the German Constitution, all fundamental rights are, as a general rule, also applicable to soldiers. Thus, the German Law on the Rights and Duties of Soldiers (Soldatengesetz [SG]) states in Section 6 that soldiers are entitled to the same rights as every other citizen. All restrictions which apply to normal citizens also apply to soldiers. There is, however, a special constitutional provision which authorises Parliament to restrict certain fundamental rights of soldiers. Article 17 a of the Constitution enumerates the fundamental rights which can be further restricted by an Act of Parliament: freedom of expression, freedom of peaceful assembly, and the right to collective petition. So far, special restrictions on the freedom of assembly have not been enacted. Apart from the fundamental rights which are enumerated in Article 17 a of the Constitution, no further fundamental rights may be subject to specific limitations. Therefore, the freedom of association or the freedom of religion, for example, may not be restricted on the sole grounds of military expedience. However, the general rules on restrictions of fundamental rights also apply to soldiers.70

70

M. Brenner, Art. 17a GG, in v. Mangoldt/Klein/Starck (ed.), Grundgesetz Kommentar Vol. I (Munich, 1999), No. 12/13; for the specific problems arising in relation to the freedom of religion see: T. Spranger, Zeitliche und örtliche Beschränkung der Religionsausübung im Wehrdienstverhältnis, (2001) Neue Zeitschrift für Wehrrecht, 235-240.

Military Law in Germany

369

In former times, the special subordination of the soldier towards the State was regulated according to the "Lehre vom besonderen Gewaltverhältnis" (the Doctrine of the Special Power Relationship). This doctrine was developed in the 19th century when, during the constitutional monarchy, the Executive alone had jurisdiction over the armed forces.71 The doctrine was applied to soldiers, prisoners, and school pupils until 1972 (although it had been increasingly criticised since 1949 because of its incompatibility with the new West German Constitution). In institutions such as the military, prisons, or schools, which can function effectively only if the individuals involved are subject to specific restrictions, the administration was not required to base its regulations on statutory acts or to take into account the individual's fundamental rights. It was left to the administration to regulate relations within these institutions on the basis of administrative orders.72 In 1972, however, the Federal Constitutional Court made it clear that fundamental rights also apply within these institutions, and that they can be restricted only on the basis of a statutory act. The State is completely bound by fundamental rights so that restrictions are permissible only within the constitutional framework. Apart from possible exceptions enumerated in the Constitution and the special possibilities to restrict soldiers' rights as laid down in Article 17 a of the Constitution no additional unwritten grounds to restrict soldiers' fundamental rights are recognised. The special status of the soldier and the effectiveness of the armed forces are not in and of themselves a foundation for further special restrictions.73 As a result, fundamental rights of soldiers can be restricted only by an Act of Parliament or an administrative order under the specific requirements of Article 80 of the Constitution. Customary law and traditional military principles do not suffice as a basis for limitations of soldiers' rights. This jurisprudence was explicitly applied to soldiers in a judgement of the Constitutional Court in 1977, concerning soldiers' political neutrality.74 Thus, on the one hand, the individual who joins the armed forces knows which of his rights may be restricted and which may not be. On the other hand, the effectiveness of the armed forces can be maintained by limiting fundamental rights in the interest of comradeship, discipline, and political neutrality.75

71

W. Heun, Art. 17a GG, in Dreier (ed.), Grundgesetz-Kommentar 1996), No. 1.

72

H. Maurer, Allgemeines Verwaltungsrecht, (14. ed., Munich, 2002), para. 6 No. 17.

73

BVerfGE 33, 1 et seqq.

74

BVerfGE 44, 197 et seq.

75

Vol. I (Tübingen,

M. Brenner, Art. 17a GG, in v. Mangoldt/Klein/Starck (ed.), Grundgesetz Vol. I (Munich, 1999), No. 6.

Kommentar

370

Georg Nolte and Heike Krieger

Consequently, soldiers have a special status of subordination vis-à-vis the state, meaning that there are restrictions imposed on soldiers which are not imposed on civilians. Therefore, German doctrine describes the status of a soldier as a "Sonderstatusverhältnis" (special status relationship). The restrictions imposed by law must be necessary for the fulfilment of the military mission. The establishment and the effectiveness of the armed forces are themselves considered to be constitutional values.76 Thus, a law restricting fundamental rights is constitutional if the soldiers' rights are weighed against this particular value in accordance with the principle of proportionality. Restrictions of fundamental rights are permissible only if they are necessary and appropriate to fulfil the aim of contributing to the effectiveness of the armed forces. This constitutional specificity with regard to securing the fundamental rights of soldiers is a reflection of the post-war military policy characterised by the concept of the soldier as a "Staatsbürger in Uniform" (citizen in uniform). Article 17 a of the Constitution represents an explicit break with history. It is directly opposed to the idea of arbitrary "blanket" limitations of soldiers' fundamental rights for the sake of discipline (Manneszucht), which was enshrined in Article 11 (2) of the German Constitution of 1919.77 The soldier is no longer a means for the armed forces, but a member, a citizen in uniform, who, upon entering the service, retains all his fundamental rights in the same way as any other citizen.78 The role which the German military played during the Nazi regime directly influenced the concept of the German armed forces formed in the Federal Republic. The idea of "Innere Führung" and the concept of the "citizen in uniform" are a response to this experience. In 1956, when the German armed forces were re-established, it was essential to ensure that they remained under the control of Parliament and the responsible Government, and that soldiers were bound by the rule of law in general and by fundamental rights in particular. Thus, leading commentaries describe the German Law on the Rights and Duties of Soldiers (SG) as a "Magna Charta Militaris."19 Courts take the concepts of "Innere Führung" and "citizen in uniform" into account, insofar as they are reflected in the soldier's constitutional rights, as means of interpretation. This consciousness of the historical circumstances is 76 77

BVerfGE 48, 127 (159 el seq).

M. Brenner, Art. 17a GG, in v. Mangoldt/Klein/Starck (ed.), Grundgesetz Vol. I (Munich, 1999), No. 4.

Kommentar

78

G. Dürig, Art. 17a GG, in T. Maunz/G. Dürig/R. Herzog, Grundgesetz-Kommentar (Munich 1961), No. 4; on the citizen in uniform see: W. Baudissin, Zum Leitbild des zukünftigen Soldaten, in: W. Baudissin (ed.), Soldat für den Frieden (Munich, 1969), pp. 209-222. 79

W. Stauf, Wehrrecht Vol. I (Baden-Baden, 2002), Soldatengesetz, Introduction No. 1.

Military Law in Germany

371

reflected in some judgements of the Administrative Military Courts. In cases of disciplinary measures against soldiers which had pronounced Nazi views, the courts have referred to the historical "mortgage" the Bundeswehr is constantly trying to redeem: "the discriminating and misanthropic statements of the accused soldier contradict... the constant efforts of the civilian superiors to 'pay off the mortgage' which, because of the crimes of the National-Socialists, still weighs on the Federal Republic of Germany."80 Whether this view conforms with a proportionate interpretation of the limits of the freedom of expression remains questionable. b. Political Neutrality of Soldiers Section 15 SG demands political neutrality of the soldier. Section 15 SG distinguishes between political activities while on duty, in the barracks, and off-duty. While on duty, a soldier is not allowed to engage in political activities. He is free to express his political opinion during conversations with his comrades on duty, but he may not work for a particular political party. Section 15 (2) SG restricts political activities within the barracks during leisure time. The provision is intended to secure comradeship and mutual respect as the indispensable bases for the discipline and functioning of the troops, even at the price of interfering with the freedom of expression. The intention is to exclude any behaviour that forces a soldier to engage in political conversations: since privacy is difficult to maintain within military installations, it is not only each soldier's right to express himself which must be taken into account, but also the other soldiers' right to be protected from such an unwanted intrusion.81 The provision gives some examples of prohibited behaviour, such as distributing leaflets or working as a representative of a political organisation. The list is not comprehensive, and other behaviour might also be considered as a violation of Section 15 (2) SG. The Constitutional Court has confirmed that Section 15 (1) and (2) SG are both in conformity with the Constitution, especially with Article 5 of the Constitution - the freedom of expression.82 Political neutrality is not required from a soldier while off-duty. Here, political activities are not only allowed but even encouraged in accordance with the idea of the "citizen in uniform". A soldier may even be granted special leave to participate in political activities.83 The only restriction in this context is the pro-

80 81

BVerwGE 86, 321 (334 et seq.); 113, 48 (50). BVerfGE 44, 197 (203 et seq.).

82

BVerfGE 44, 197 (201); 28, 282 (291).

83

See below V.5.

372

Georg Nolte and Heike Krieger

hibition on wearing uniforms at public political assemblies (Section 15 (3) SG except for those organised by the Ministry of Defence or public relation events of the armed forces). This issue is regulated by a joint service regulation on wearing uniforms at political assemblies.84 If a soldier could express his own political opinion at public events while wearing a uniform, he might give the impression that he was speaking on behalf of the armed forces. This is undesirable both because the effectiveness of the armed forces requires that private political activities of individual soldiers should not be attributed to the armed forces by the public, and because the democratic process should not be influenced by soldiers in uniform, as it would emphasise their status unduly.85 Due to the broad phrasing of Section 15 SG, there has been much jurisprudence on the interpretation of this provision. The jurisprudence has sometimes been criticised as being arbitrary: 86 while a soldier's request that the Minister of Defence should resign was not considered to be an offence, a speech in the civilian sphere advocating disarmament was considered a violation of Section 15 SG. The right to free information is not subject to special restrictions since Article 17 a of the Constitution explicitly refers only to the freedom of expression. In addition, the concept of the "citizen in uniform" requires that the soldiers have unrestricted access to information about all public debates and political discussions. It would be difficult to justify a restriction of the freedom of information with the argument that unrestricted freedom of information would interfere with military effectiveness.87 The freedom of assembly is enshrined in Article 8 of the Constitution. It can be restricted according to Article 17a of the Constitution. So far, however, the Legislature has not made use of this option. The right to be a member of a political party is not subject to special restrictions. Problems have arisen with regard to activities of members of political parties which are opposed to the constitutional order (e.g. communist or neofascist parties). The Constitution protects the rights and activities of political parties in Article 21. As long as a political party is not declared by the Constitutional Court to be prohibited, membership may not result in negative consequences. Soldiers, however, are obliged to support the free and democratic rule 84

Zentrale Dienstvorschrift ZDv 37/10 Nr. 113.

85

W. Stauf, Wehrrecht Vol. I, supra n. 79, Soldatengesetz, Sect. 15 No. 15.

86

H. Glessen, Meinungsfreiheit und Militärdisziplin, (1988) Neue Zeitschrift für Wehrrecht 221, 227 et seq.; W. Stauf, Wehrrecht Vol. I, supra η. 79, Soldatengesetz, Sect. 15 No. 4. 87 M. Brenner, Art. 17a GG, in v. Mangoldt/Klein/Starck (ed.), Grundgesetz Kommentar Vol. I (Munich, 1999), No. 21.

Military Law in Germany

373

of law according to Section 8 SG. Since the effectiveness of the armed forces is considered as a constitutional value, tension between different values can arise. Therefore, disciplinary sanctions can only be imposed on soldiers who actively campaign for a political party which opposes the Constitution. Courts have confirmed disciplinary sanctions if the soldier is actively working for such a party, for instance if he is nominated as a candidate for elections.88 In 1999, the Federal Administrative Court even decided that the mere membership in an extremist right-wing party justifies to exclude a soldier from being a member of the production staff of an army broadcasting service.89 The problem is heavily debated in the academic literature.90 If a superior deliberately infringes his duty of loyalty, this could (under certain circumstances) lead, according to the circumstances, to a dismissal from the armed forces.91 In a case in which a civil servant was a member of the governing board of the NPD (an extremist rightwing party with neo-fascist tendencies), the Federal Administrative Court held that a dismissal was justified.92 According to the concept of the "citizen in uniform", soldiers are not only entitled to vote, but also to be elected to office. Since the presence of members of the Executive, such as soldiers, in a parliament conflicts with the principles of the separation of powers, Section 25 SG regulates in detail the exercise of the soldier's right to be elected. Section 25 SG was introduced into the Law on the basis of Article 137 (1) of the Constitution. This provision authorises the legislator to lay down criteria of ineligibility and incompatibility for civil servants, soldiers, and judges. While there are no laws on ineligibility,93 criteria of incompatibility are contained in the Law on the Rights and Duties of Soldiers. In order to prevent tensions, the soldier must notify his superiors of a nomination to stand for political office. The soldier will be granted special leave for the time of his elected term, and his duties as a member of the armed forces are

88

BVerwG, Judgement of 20 May 1983 - 2 W D 11/82; Decision of 11 October 1983 1 WB 81/83; Decision of 24 November 1987 - 1WB 105/86; see VG Münster, (1995) Deutsches Verwaltungsblatt 630, 631. 89

BVerwG, (2001) Neue Zeitschrift für Wehrrecht 82.

90

E. Cuntz, Verfassungstreue der Soldaten (Berlin, 1985), pp. 203 et seqq.-,G. C. Makowski, Zur Betätigung von Soldaten in Parteien mit verfassungsfeindlichen Tendenzen, (2000) Neue Zeitschrift für Wehrrecht 194; F. Schafranek, Art. 21 Abs. 2 G G und die disziplinare Ahndung der Betätigung von Soldaten in verfassungsfeindlichen, aber nicht verbotenen politischen Parteien, (1998) Neue Zeitschrift für Wehrrecht 79. 91

W. Stauf, Wehrrecht Vol. I, supra η. 79, Soldatengesetz, Sect. 8 No. 5.

92

BVerwG, (1984) Neue Juristische Wochenzeitschrift 3096.

93

T. Maunz, Art. 137 GG, in T. Maunz/G. Dürig/R. Herzog, (Munich 1960), No. 16.

Grundgesetz-Kommentar

374

Georg Nolte and Heike Krieger

suspended for the period of the mandate. When a conscript has agreed to his nomination for elections to the Bundestag, to the federal parliaments or to the European Parliament, he must be released from service.94 In contrast to the situation in France, soldiers in Germany receive 50% of their normal pay from the armed forces if political mandates are not sufficiently remunerated. 95 On the local level, the soldier can ask for remunerated special leave for the purpose of exercising his mandate. 96 The request can be refused if the interests of the armed forces would be adversely affected by granting the leave.97 In the early 1980s, the extent of soldiers' rights to express their political opinion was discussed extensively. The decision by N A T O States to deploy medium range Pershing II missiles on German territory led to fierce discussions about disarmament, not only in the general public but also within the armed forces. This is reflected in the extensive jurisprudence of the Military Administrative Courts on soldiers' political activities. 98 In addition, the question of a soldier's support for parties opposing the constitutional order is a constant issue. Since the Ombudsperson for the Armed Forces regularly calls attention to right-wing activities of major and minor importance in the armed forces, there is a strong public awareness of radical right-wing tendencies in the military. The historical role of the G e r m a n military during the Nazi time also contributes to this awareness. In general, the progressive liberalisation of society is also reflected in the evolving jurisprudence concerning the armed forces. c. Freedom of Association German soldiers enjoy the freedom of association, which is enshrined in Article 9 of the Constitution. This includes the right to form special interest groups for soldiers, such as the German Federal Armed Forces Association (Bundeswehrverband)ι. This democratically organised association was founded in 1956, and it claims to represent the interest of all service-members. It is considered to be an expression of the concept of the "citizen in uniform," since the organisation is a means for the soldiers to participate actively in political life. The organisation has 250,000 members. According to Section 2 of its Statute, the organisation represents "the general, non-material, social, and career interests of its

94

Sect. 29 (1) No. 8 Law on Conscription - Wehrpflichtgesetz. Sect. 25 (2) SG. 96 Sect. 25 (3) SG. 97 Sect. 25 (3) SG. 98 K. Ipsen, Auswahl Wehrdienst und Grundgesetz, in: J. Ipsen/E. Schmidt-Jortzig, Recht - Staat - Gemeinwohl, Festschrift für D. Rauschning (Köln, 2001), 105-120. 95

Military Law in Germany

375

members, as well as their families." The German Federal Armed Forces Association is politically and financially independent. It is a founding member of the European Organisation of Military Associations (EUROMIL), which promotes the basic rights and freedoms of European service-members, in particular the right to associate and the right to assemble. d. Conscientious Objection Conscription is still practised in Germany, although it has recently come under heavy political and legal attack.99 There is a law regulating the duty to serve: the Wehrpflichtgesetz.m The German Constitution contains the right to conscientious objection in Article 4 (3): Nobody can be forced against his will to serve under arms in times of war. Despite its wording, the right to conscientious objection extends to the whole sphere of military service, and applies in war-time as well as in peace-time.101 In consequence of this far-reaching interpretation, not only persons who are called to arms but also soldiers in active service and reservists can claim to be conscientious objectors. Likewise, the right is not restricted to conscripts, but can be invoked by career soldiers as well.102 The question when a personal decision not to serve was truly motivated by conscientious objection has been a controversial issue of constitutional law and policy in the 1970s and 1980s.103 In general, the decision to object must be based on a resistance to the very idea of service in the armed forces or the use of weapons. Only this basic internal conflict has been recognised as a justification for objections to the military service. Therefore, the right cannot be claimed by a person who objects to a specific war under specific historical circumstances, against specific enemies, or against specific weapons.104 A soldier cannot claim a right to conscientious objection if he does not want to partici-

99 M. Baldus, Die Verfassungsmäßigkeit der allgemeinen Wehrpflicht unter veränderten militärpolitischen Bedingungen, (1993) Neue Zeitschrift für Wehrrecht 92; D. Walz, Der "neue Auftrag" der deutschen Streitkräfte und das Prinzip der allgemeinen Wehrpflicht, (1993) Neue Zeitschrift für Wehrrecht 89. 100

Wehrpflichtgesetz of 24 July 1956, Bundesgesetzblatt Vol. I, p. 651; see also Wehrpflichtverordnung of 23 November 2001, Bundesgesetzblatt Vol. I, p. 3221. 101

BVerfGE 12, 45 (56).

102

R. Herzog, Art. 4 GG, in T. Maunz/G. Dürig/R. Herzog, (Munich, 1988), No. 189. 103

See BVerfGE 48, 127 (159 et seqq.), 69, 1 (28 et seqq.).

104

BVerwGE 83, 358, (371 et seq.).

Grundgesetz-Kommentar

376

Georg Nolte and Heike Krieger

pate in a specific out-of-area operation, either.105 His only option in this situation is to quit the military service altogether. e. Equal Treatment Equality and equal treatment are realised for men and women in the armed forces, today. The armed forces were opened to women as a result of the judgement of the European Court of Justice Kreil v. The Federal Republic of Germany.106 In this case, the Court held that Council Directive 76/207/EEC of 9 February 1976 on the Implementation of the Principle of Equal Treatment for Men and Women as regards Access to Employment, Vocational Training and Promotion, and Working Conditions precluded the application of national provisions, including those of constitutional law, which were interpreted to exclude women from military posts involving the use of arms. As a consequence of the EC J ruling, Article 12a (4) of the German Constitution, which stated that women were not allowed to serve on a military post which involved the use of arms, had to be amended. The new provision makes it clear that women may not be compelled (i.e. conscripted) into service involving the use of arms. Women are permitted to join the armed forces in general capacities since 2001.107 Both the new constitutional provision108 as well as the judgement of the European Court of Justice109 have been heavily debated. As a consequence of the opening of the armed forces to female soldiers, the Ministry of Defence has been obliged to adapt a joint service regulation on the relations between sexes within the armed forces. Sexual activities, including homosexual activities, between servicemembers in the armed forces constitute a disciplinary offence.110 It is held that such activity endangers the necessary solidarity within the armed forces. Since social attitudes towards homosexuality have changed, leading the

105

BVerwGE 103, 361 (371 et seq.)

106

ECJ, Kreil v. The Federal Republic of Germany, C-285/98 of 11 January 2000.

107

Law Changing the Constitution (Art. 12 a) - Gesetz zur Änderung des Grundgesetzes of 19 December 2000, BGBl Vol. I, p. 1755 108 Κ. Doehring, Verbiete das Grundgesetz den freiwilligen Waffendienst von Frauen in der Bundeswehr, (1997) Neue Zeitschrift für Wehrrecht 45-53; A. Steinkamm, Der "Ernstfall für die Gleichberechtigung" ist in Sicht, (1994) Neue Zeitschrift für Wehrrecht 137; M. Zuleeg, Frauen in der Bundeswehr, (1997 ) Die öffentliche Verwaltung 1017-1025. 109 P. Driest, Das Gebot der Stunde: Streitkräfteöffnung für Frauen, (2000) Neue Zeitschrift für Wehrrecht 65-81; V. Epping, Frauen zur Bundeswehr!, 53 (2000) Der Öffentliche Dienst 188-196; V. Götz/R. Streinz, Frauen an die Front, (2000) Deutsches Verwaltungsblatt 585-595. 110

BVerwG, (1999) Neue Zeitschrift für Wehrrecht 770; (2001) 30.

Military Law in Germany

377

Legislature to accept stable homosexual relationships as similar to marriage, the severity of the disciplinary infraction no longer depends on whether the activities concerned are homosexual or heterosexual. 111 The situation of homosexuals has improved in other respects, too. Until recently, the armed forces had considered persons openly pursuing their homosexuality as unsuitable and unqualified for superior ranks, and the Federal Administrative Court had constantly confirmed this approach. 112 However, probably in response to the judgement of the European Court of Human Rights Smith and Grady v. The United Kingdom,113 the Ministry has now issued a decree changing this practice.114 /

Other Fundamental Rights and their Restrictions

The right to petition is also subject to a special restriction: it is prohibited for military personnel to bring forward collective complaints." 5 This restriction is based on Article 17a (1) of the Constitution, the so-called "mutiny clause", which has its roots in military tradition. Collective complaints are considered to be dangerous to military order as it is contrary to military discipline for soldiers to act collectively without a responsible military leader. As yet, there is no explicit prohibition of collective petitions directed to the Parliament. The freedom of thought, conscience, and religion contained in Article 4 of the Constitution is not subject to special restrictions. Consequently, a soldier is not required to confirm his oath by a religious formula (Section 9 (1) SG). Section 36 SG states that a soldier is entitled to exercise his religion free from disturbance. A command to participate in a common prayer would be illegal. Whether certain military procedures related to religious traditions ("Großer Zapfenstreich"!"Helm ab zum Gebet") infringe the freedom of religion is still a controversial subject. 116 111

BVerwG, (2002) Neue Juristische Wochenschrift 1514.

112

BVerwGE 63, 287 and 86, 355.

113

ECHR, Smith and Grady v. The United Kingdom, Judgement of 27 September 1999, Reports of Judgements and Decisions 1999-VI, p. 45; Lustig-Prean and Beckett v. The United Kingdom, Judgement of 27 September 1999, No. 31417/96. 114

See R. Schmidt-Radefeldt, Streitkräfte und Homosexualität, (2000) Neue für Wehrrecht 141 et seqq.

Zeitschrift

115

Sect. 1 (4) WBO; Sect. 7 Law on the Parliamentary Ombudsperson (Gesetz über den Wehrbeauftragten des Deutschen Bundestages).

116 D. Maar, "Helm - ab zum Gebet"! - Ist der traditionelle Große Zapfenstreich mit der Rechtsordnung zu vereinbaren?, (1987) Neue Zeitschrift für Wehrrecht 141; G. von der Ropp, "Helm ab zum Gebet", (1987) Neue Zeitschrift für Wehrrecht 149; W. Stauf, Wehrrecht Vol. I, supra η. 79, Soldatengesetz, Sect. 6 No. 7.

378

Georg Nolte and Heike Krieger

2. Legal Obligations of Soldiers According to Section 1 SG, a person assumes military status either on the basis of conscription or as a career soldier. There are two types of career soldiers in Germany: those enrolled for a full career and those enrolled for a certain period of time. Military status is described as a public service status in which State and soldier are linked in mutual trust (öffentlich-rechtliches Dienst- und Treueverhältnis). In many aspects, the soldier's status, especially that of career soldiers, is comparable to that of public servants. The Law on the Rights and Duties of Soldiers (SG) imposes several obligations on soldiers: to serve the Federal Republic of Germany loyally (Section 7 SG), to defend the liberty of the German people (Section 7 SG), to acknowledge and stand up for the free and democratic rule of law (Section 8 SG), obedience (Section 11 SG), comradeship (Section 12 SG), truthfulness (Section 13 SG), secrecy/discretion (Section 14 SG), to refrain from any interference in the domestic affairs of a host country (Section 16 SG), discipline (Section 17 (1) SG), to respect his or her superiors (Section 17 (1) SG), to behave in such a manner as the armed forces' reputation, as well as the respect and trust in his or her service as a soldier, require ( Wohlverhaltenspflicht) (Section 17 (2) SG); to maintain his or her health in good condition (Section 17 (4) SG) and, upon order, to live in barracks (Section 18 SG). Section 7 SG describes the soldier's basic duty: to serve the Federal Republic of Germany loyally and to defend the liberty of the German people. The provision asks every soldier (both those on-duty and those off-duty) to contribute to the effectiveness of the armed forces and to refrain from all actions that could weaken the armed forces in their constitutional mission.117 The Constitutional Court has confirmed the legality of such a general clause, since it would not be possible to list all professional duties.118 Thus, the soldier's duties can be dynamically adjusted to progressive development and new necessities. A soldier cannot claim that he had agreed to different duties when he entered the military service.119 Duties of loyalty are stricter for career soldiers than for conscripts. This is based, inter alia, on the comparability of the military status to that of civil servants.120 The obligation to serve Germany loyally comprises the duty to be present for duty, the careful use of public property during service, the meticulous performance of one's tasks, and the duty of loyalty towards the State and

117

BVerwGE 103, 361 et seq.

118

BVerfGE 26, 186 (204).

119

BVerwGE 103, 361 (365).

120

BVerwGE 103, 361 (367).

Military Law in Germany

379

its legal order.121 Section 7 SG may be violated, inter alia, by: unauthorised absence from the armed forces,122 distribution of leaflets in the civilian sphere calling on comrades to disobey orders,123 abuse of alcohol, drug trafficking or drug consumption,124 impeding the soldier's ability to fulfil his duties,125 and denying former activities performed for the Ministry of State Security of the GDR (Ministerium für Staatssicherheit) on a questionnaire during application for a position with the armed forces.126 The duty of loyalty towards the State is neglected by a soldier who expresses Nazi views.127 A soldier may not interpret the content and extent of his duty to serve loyally according to his personal considerations. This issue arose in the context of out-of-area operations, such as in Somalia or Yugoslavia. A soldier made a written statement to the Ministry of Defence saying that he would not participate in any operation that was not directed against an act of aggression against Germany or another NATO Member State. The Federal Administrative Court considered such behaviour as a violation of Section 7. Such a statement contravenes the duty to contribute to the effectiveness of the armed forces. It brings the soldier's loyalty to his service and his superiors into question.128 The Federal Administrative Court emphasised the reasoning of the Constitutional Court, according to which career soldiers could be forced to participate in such a mission against their will. A soldier cannot claim that he did not foresee the duty to serve out-of-area.129 Section 8 SG contains another basic duty of German soldiers, the infringement of which is considered most serious: the duty to support the free and democratic constitutional order (freiheitlich demokratische Grundordnung). Section 8 SG is violated if a soldier does not identify himself with the free and democratic rule of law in the Federal Republic of Germany, which he is obliged to serve loyally, but supports instead principles capable of undermining this system.130 There is a violation if this attitude influences his behaviour towards other soldiers or the manner in which he performs his service.131 The free and 121

BVerwGE 113,48(50).

122

BVerwG, (1977) Neue Zeitschrift für Wehrrecht 103.

123

BVerfG, (1970) Neue Zeitschrift für Wehrrecht 218.

124

BVerwG, (1981) Neue Zeitschrift für Wehrrecht 144.

125

BVerwG Judgement of 28 April 1 9 8 1 - 2 W D 56/80.

126

BVerwG, (1998) Neue Zeitschrift für Wehrrecht 31.

127

BVerwG 113,48.

128

BVerwGE 103, 361 (369).

129

BVerfG 90, 286 (387 et seqq.)·, BVerwGE 103, 361 (364 et seq.).

130

BVerwGE 28, 36 (48).

131

BVerwGE 86, 321 (327 et seq.).

380

Georg Nolte and Heike Krieger

democratic rule of law is enshrined in the principles of Articles 1 and 20 of the Constitution, which, according to Article 79 (3) of the Constitution, cannot be amended. These principles are, inter alia, respect for human rights, sovereignty of the people, balance of powers, and the rule of law. According to jurisprudence, it is absolutely necessary that soldiers not only acknowledge the State's basic order, but that they actively support the idea of the constitutional State and pursue its aims.132 The duty is stricter for career soldiers than for conscripts. While conscripts are only obliged to acknowledge the free and democratic rule of law, professional soldiers have to identify themselves with it. The same obligations as for civil servants or judges apply. These considerations are based on the principles of a militant democracy, which are also applicable to the internal order of the armed forces.133 The duty of loyalty does not require the soldier to identify himself with the aims and policies of the Government in power.134 Section 12 SG describes comradeship as an essential part of personal conduct within the armed forces. The special emphasis on the conduct between the soldiers results not only from the special character of the armed forces and its mission, but also from the frequent necessity to live together in barracks (Section 18 (1) SG). The wording of the law falls back on the concept of human dignity as enshrined in the Constitution, thus placing a traditional military virtue in the context of Article 1 (1) of the Constitution. A soldier is required to respect the dignity, honour, and rights of a comrade, and he/she must support other soldiers in cases of distress or danger. The third sentence creates a general duty of tolerance towards other opinions. Comradeship between soldiers has been particularly emphasised by the law, because the solidarity and the effectiveness of the armed forces are based on the soldiers' mutual trust and willingness to support one another. The requirement to respect the dignity of other soldiers was not introduced into the law in order to protect the individual soldier, but to prevent actions which might cause objective danger to the soldiers' solidarity and mutual trust.135 Although Section 12 SG explicitly refers to comradeship between soldiers, it is also applicable to civilians working in the armed forces. The trustful co-operation between soldiers and civilian workers contributes to the effectiveness of the armed forces, since there are many areas

132

BVerwG 113, 48 (51). BVerwG 86, 321 (327); W. Stauf, Wehrrecht Vol. I, supra n. 79, Soldatengesetz, Sect. 8 Nos. 1 and 2. 133

134

135

BVerwG, (1984) Neue Zeitschrift für Wehrrecht 258.

BVerwGE 93, 140 et seqq.] BVerwG, Judgement of 26 September 1996, - 2 WD 33/95.

Military Law in Germany

381

in which the military and the civilian administration have to work closely together. The mutual respect and common responsibility of those fulfilling different functions needs to be protected.136 Section 12 SG may be violated by having an extra-marital relationship with a comrade's wife,137 by degrading and insulting treatment by superiors,138 as well as by sexual harassment.139 According to Section 1 (1) of the Law on Complaints by Soldiers (WBO), a soldier may complain about the behaviour of a comrade. Section 12 is particularly relevant for this kind of complaint. However, there is no right to go to court in case of a violation of Section 12 (except for cases in which a superior violates this duty in his relationship towards a subordinate)140 because only actions of the State are subject to review by the courts. The actions of a comrade do not fall within this category.141 Section 17 SG includes several different duties. It outlines the military principles of discipline and respect for superiors (Section 17 (1) SG), as well as the duty to behave in such a manner as the armed forces' reputation and the respect and trust which are due to his position as a soldier require (Section 17 (2) SG). The reputation of the armed forces can be infringed only by off-duty behaviour, while the respect for and trust in a soldier personally may be infringed on only by the soldier's behaviour while on duty.142 It is not necessary that the soldier's behaviour causes actual harm to the military's reputation; the potential of his behaviour to cause such damage is sufficient for the infraction. The courts use a concept of the 'dutiful soldier' against which to measure questionable activities. Section 17 (2) SG may be infringed not only by officers but also by members of the ranks, if they commit severe crimes.143 An officer who announces officially that he is not willing to participate in out-of-area operations, although the Constitutional Court has declared these operations to be constitutional, violates Section 17 (2) SG, since the public could draw negative conclusions about loyalty to the rule of law among officers in general.144 Courts have held that a public

136

BVerwG, Judgement of 15 February 2000 - 2 W D 30/99; for an analogy: BVerwG 103, 295.

137

BVerwG 43, 293 (295).

138

BVerwG, Judgement of 26 September 1 9 9 6 - 2 W D 33/95.

139

Truppendienstgericht Süd, (1996) Neue Zeitschrift für Wehrrecht 128.

140

BVerwG, (1979) Neue Zeitschrift für Wehrrecht 179, 181 et seq.

141

H. Böttcher/K. Dau, Wehrbeschwerdeordnung - Kommentar (4th edn., Munich, 1997), Sect. 1 Nos. 65 and 154. 142

W. Stauf, Wehrrecht Vol. I, supra n. 79, Soldatengesetz, Sect. 17 No. 5.

143

BVerwG, (1985) Neue Juristische Wochenschrift 939.

144

BVerwG 103, 361 (369).

382

Georg Nolte and Heike Krieger

speech against the Strategic Defence Initiative does not infringe the reputation of the armed forces.145 Committing theft 146 or holding membership in an association selling arms without permission147 are actions which constitute an infringement.148 Trust in and respect for a soldier has been considered violated by cases of sexual harassment,149 making forbidden private phone calls from official telephones,150 giving orders which ignore legal obligations,151 and denying that the German Reich carried out an armed attack on Poland in 1939.152 Some of the activities falling under these two general headings can also be severe enough to incur penal sanctions, such as aviolation the duty to obey (Disobedience, Sections 19, 20 WStG), the superior's duty to care for his soldiers (Degrading Treatment, Sections 30 and 31 WStG), abuse of disciplinary power (Section 39 WStG), or the duty to be truthful (False Official Report, Failure to Report Something, Sections 42 and 43 WStG).

3. The Power of Command and the Duty to Obey Section 10 (4) SG restricts the superior's power to command. Thus, commands (a) must have a military purpose, (b) may not be illegal, and (c) may not contravene fundamental rules of public international law. The soldier's obligation to obey orders is enshrined in Section 11 (1) SG. A soldier must comply with commands completely, diligently, and immediately. There is, however, no obligation to obey a command which violates human dignity or has not been given for military purposes, and a soldier must not obey a command that would constitute a criminal offence. If the soldier obeys such a command, he is held criminally responsible only if he knew or if it was obvious ex ante that a criminal offence would be committed by carrying out the order. Thus, the duty to obey does not depend on the legality of the order, because the legality of the order and the duty to obey are not identical. Only under the con-

145

BVerwG, (1986) Neue Zeitschrift für Wehrrecht 161.

146

BVerwG, (1997) Neue Zeitschrift für Wehrrecht 254.

147

BVerwG, (1997) Neue Zeitschrift für Wehrrecht 165 and (1996) Neue Zeitschrift Wehrrecht 73.

148

für

BVerwG, (1997) Neue Zeitschrift für Wehrrecht 254.

149

BVerwG, (1996) Neue Zeitschrift für Wehrrecht 34; (2002) Neue Zeitschrift für Wehrrecht 79. 150

BVerwG, (1998) Neue Zeitschrift für Wehrrecht 83.

151

BVerwG, (1985) Neue Zeitschrift für Wehrrecht 162.

152

BVerwG, (2000) Neue Zeitschrift für Wehrrecht 120.

Military Law in Germany

383

ditions of Section 11 SG is an illegal order non-binding. Thus, in principle, commands are to be presumed binding.153 This rule is an attempt to remove the burden of risk involved in following an order from the soldier's shoulders. The motives of the legislator have been stated explicitly: "Cases where an order obviously contravenes penal law are considered to be beyond doubt for the soldier. However, if a soldier merely has doubts about the legality of the order, there is no manifestly illegal order from his point of view. Thus, he does not take a risk by obeying such an order. This is based on the premise that obeying an order should not pose a risk for a soldier even if it is possible - but not definite - that the order is non binding. The dutiful soldier can be sure that he need not be afraid to obey an order. There is no duty for the soldier to examine the lawfulness of the order. However, if a command constitutes a crime, the dutiful soldier will not have doubts that he must disobey the order."154 The notion of human dignity is a vague legal term. Its meaning depends on the specific circumstances, and it is subject to social developments. It is influenced by the Constitution's concept of the human being. This concept understands the person not solely as an individual, but also as a part of the society in which he lives and to which he owes certain obligations. The concept of human dignity postulates that a human being may not be treated in a manner that would reduce him to a mere object.155 Commands that ridicule the soldier or that would force him to act in a manner that would reduce the respect paid to him are considered as an infringement on the human dignity of soldiers.156 A command to eat worms has been considered such an infringement.157 Likewise, although meant to be a joke, an order "to torture a prisoner according to the rules of international law" during an exercise infringes human dignity.158 Commands that would infringe the human dignity of third persons are also not binding.159 Military purpose is defined as everything that - directly or indirectly - serves the armed forces' official mission.160 According to the jurisprudence of German

153

W. Fürst/H. Arndt, Soldatenrecht (Berlin, 1992), Sect. 11 No. 5.

154

Deutscher Bundestag, 2. Wahlperiode, Drucksache 1700, p. 21; see also BGH, (1993) Neue Juristische Wochenschrift 141, 149; (1993) Neue Juristische Wochenschrift 1932, 1937. 155

BVerfGE 27, 6; 30, 26.

156

OLG Celle, (1962) Neue Zeitschrift für Wehrrecht 42.

157

BVerwG, (1992) Neue Juristische Wochenschrift 587.

158

BVerwG, (1999) Neue Zeitschrift für Wehrrecht 169.

159

W. Fürst/H. Arndt, Soldatenrecht (Berlin, 1992), Sect. 11 No. 7.

160

W. Stauf, Wehrrecht Vol. I, supra η. 79, Soldatengesetz, Sect. 10 No. 25.

384

Georg Nolte and Heike Krieger

courts, this includes the manner in which a soldier has to wear his hair if this is necessary for military purposes. Thus, the courts have affirmed a military purpose for regulations on hair length161 and on wearing beards,162 but not on hairstyle, such as a typical punk haircut.163 Other cases of military purpose include the way in which soldiers must greet their superiors,164 or certain commands, such as singing during a march.165 A command is not given for military purposes if it aims at influencing private behaviour, or if it serves private purposes. This is the case if the command is not related to the military mission or would force the soldier to use private financial means.166 Some reasons for disobeying orders other than those explicitly stated in Section 11 have been accepted. A soldier need not follow a command which demands the impossible.167 Moreover, commands which would mean an undue hardship,168 such as commands which endanger the life of a soldier in times of peace, are not binding.169 The latter commands are considered as being inconsistent with the principle of proportionality when infringing on the personal sphere of a soldier.170 Likewise, commands that infringe fundamental rights which are not subject to restrictions may be non-binding. This is relevant in relation to Articles 4 and 9 of the Constitution concerning the freedom of religion and the freedom of association. Commands constituting a criminal offence concern all acts that would constitute a criminal offence according to the general Penal Code as well as the special Penal Code for Soldiers or other special codes, including the new International Criminal Code ( Völkerstrafgesetzbuch).171 All other illegal commands are, in principle, binding according to Section 11 SG. Although the superior is not entitled to give illegal commands, in cases of "simple" illegality the soldier must nonetheless obey the order. Commands that would be illegal but nonetheless binding are, for instance, commands that con161

BVerwG, (1972) Neue Zeitschrift für Wehrrecht 221.

162

W. Stauf, Wehrrecht Vol. I, supra η. 78, Soldatengesetz, Sect. 10 No. 19.

163

BVerwG, (1983) Neue Zeitschrift für Wehrrecht 145.

164

BVerwG, (1973) Neue Zeitschrift für Wehrrecht 146.

165

BVerwG, (1977) Neue Zeitschrift für Wehrrecht 31.

166

Bundesdisziplinarhof, (1965) Neue Zeitschrift für Wehrrecht 76.

167

W. Fürst/H. Arndt, Soldatenrecht (Berlin, 1992), Sect. 11 No. 8.

168

W. Fürst/H. Arndt, Soldatenrecht (Berlin, 1992), Sect. 11 No. 7.

169

Truppendienstgericht Mitte, Judgement of 9 June 1986 - M 4 BLb. 5/86; W. Stauf, Wehrrecht Vol. I, supra η. 78, Soldatengesetz, Sect. 11 No. 13.

170

Bundesdisziplinarhof, (1959) Neue Zeitschrift für Wehrrecht 98.

171

See below VII.2.f.

Military Law in Germany

385

tradict service regulations. It is, for example, illegal to give commands that contravene the service regulations on the use of military vehicles, but such commands would still be binding.172

4. Social Rights of Soldiers and their Families a. Social Rights in General Soldiers' social rights are regulated in general terms by Sections 30 and 31 SG: Section 30 grants allowances and support in kind, while Section 31 contains a general right to care (Fürsorgepflicht des Dienstherrn). Many of the social rights are framed in accordance with or are contained in the general provisions on social rights for civil servants (Beamtenrecht). Section 30 (1) SG is the basis for certain claims which are included in detail in a number of specific laws. Allowances and support in kind, which includes the right to free medical care, are regulated in two different laws on allowances for soldiers: For instance, the Federal Law on Allowances for Civil Servants and Soldiers (Bundesbesoldungsgesetz)173 and the Wehrsoldgesetz.174 While the former applies to career soldiers, the latter is applicable to conscripts. Pensions which depend on the length of service (Dienstzeitversorgung), as well as pensions in case of injury directly related to one's service, are based on the Soldatenversorgungsgesetz.175 Travel expenses and expenses resulting from changes of residence are dealt with in the Bundesreisekostengesetz.176 The right of the soldier to care and welfare is based on the mutual ties of loyalty and allegiance between himself and the Bundeswehr as his employer. This duty is distinct from the duty of the military superior to care for his soldiers.177 The general right to care finds its equivalent in the rules for civil servants. It is the basic legal principle which governs the relationship between the State as an employer and its employees. The general right to social benefits is reflected in such a large number of special provisions concerning pay, allow-

172

See below VI.3.

173

Bundesbesoldungsgesetz of 6 August 2002, Bundesgesetzblatt Vol. I, p. 3020.

174 Gesetz über die Geld- und Sachbezüge der Soldaten, die aufgrund der Wehrpflicht Wehrdienst leisten of 29 April 2002, Bundesgesetzblatt Vol. I, p. 1518. 175 Gesetz über die Versorgung für die ehemaligen Soldaten der Bundeswehr und ihre Hinterbliebenen of 6 May 1999, Bundesgesetzblatt Vol. I, pp. 882 and 1491. 176

Gesetz über die Reisekostenvergütung für die Bundesbeamten, Richter im Bundesdienst und Soldaten of 13 November 1973, Bundesgesetzblatt Vol. I, p. 1621. 177

W. Stauf, Wehrrecht Vol. I, supra η. 79, Soldatengesetz, Sect. 31 No. 1.

386

Georg Nolte and Heike Krieger

anees, expenses, and military discipline that Section 31 SG itself is only of subsidiary importance. It influences the burden of proof insofar as the employer is responsible for any uncertainties in the relationship.178 One of the consequences of the general right to care is the support which the armed forces must supply when a soldier is accused of a crime before a criminal court. In such cases, the armed forces can, for example, give a loan to the soldier to cover the expenses of the judicial proceedings. This loan is granted if it is likely that the soldier is innocent or if the armed forces could incur civil liability.179 The dispute on how and whether to implement a prohibition to smoke on military bases is also linked with the general right to care.180 Under Section 36 SG, servicemembers are entitled to religious counselling and to the undisturbed practice of their religion. The provision is a direct consequence of the religious freedom embodied in the Constitution. Religious ministry by the Chaplain Service in the armed forces is part of the overall activities of, and is supervised by, the churches. Military chaplains provide spiritual care to the soldiers and families in the military communities. The Chaplain Service is a separate organisational branch alongside the armed forces themselves, the military administration, and the administration of justice. Chaplains are subject only to ecclesiastical law in their religious activities, and are not bound by government directives. They are supposed to co-operate with military superiors. A special feature of the concept of the citizen in uniform is enshrined in Section 33 SG: Soldiers are educated in political affairs as well as in public international law (staatsbürgerlicher Unterricht). Soldiers must be educated in a manner that does not influence them in favour or against a specific political opinion. The general right to care is extended to the soldier's family in all personnelrelated measures. Since soldiers are required to move frequently during their term of service, special importance is attached to the provision of housing. Soldiers and their families should, where possible, be able to move without their quality of life or housing being affected. As an employer, the armed forces also support couples who live apart as a result of long-term deployments abroad.

178

OVG Münster, (1960) Der öffentliche Dienst 55.

179

Erlaß zum Rechtsschutz in Strafsachen of 1 July 1986, Ministerialblatt des Bundesministeriums der Verteidigung 1986, p. 331. 180

W. Stauf, Wehrrecht Vol. I, supra η. 78, Soldatengesetz, Sect. 31 No. 8.

Military Law in Germany

387

b. Free Medical Care The right to free medical care is a right specifically granted to soldiers. It is justified by the necessity of keeping soldiers fit for the effective performance of the armed forces. The right to free medical care is regulated in Section 30 SG and Section 69 (2) of the Federal Law on the Allowances for Civil Servants and Soldiers (Bundesbesoldungsgesetz). It is linked with the right to be paid (if the soldier is in active service). The soldier is free to choose civilian treatment, but in that case he must cover his own costs.181 The right to free medical care also applies in the case of a permanent invalidity caused during the soldier's service ( Wehrdienstbeschädigung) as long as the military administration has recognised the invalidity as having been a consequence of or suffered during service. The details of the right to free medical care are dealt with in the General Service Regulations which derive from Section 69 (2) of the Federal Law on the Allowances for Civil Servants and Soldiers.182 Matters related to the general duty of superiors to care for ill soldiers under their command are regulated in a decree of the Ministry of Defence of 1970: "Betreuung erkrankter Soldaten." The decree outlines which measures must be taken by the superior in order to fulfil his duty to care for the soldier. For instance, the superior must inform relatives about the illness, and must keep in personal contact with the soldier through visits and other forms of personal support. The right to free medical care includes everything that is necessary to keep the soldier fit,183 including precautionary measures. A soldier may even be treated for drug addiction. Female soldiers receive medical treatment during pregnancy. Medicine and other medical equipment, such as spectacles, are provided by the Bundeswehr. At the end of his service, the soldier may keep the medical equipment if he still needs it. While serving abroad, the soldier may be treated by German medical officers, by foreign medical officers, or by civilian institutions of the host country if there are special agreements on the fees. In addition, the State contributes to the costs incurred by medical treatment of the soldier's family. The state covers 50% of spouses' medical costs while up to 80% of children's costs are reimbursed.

181

W. Stauf, Wehrrecht Vol. I, supra n. 79, Soldatengesetz, Sect. 30 No. 4.

182

Allgemeine Verwaltungsvorschriften zu Sect. 69 (2) BBesG, Ministerialblatt des Bundesministers der Verteidigung 1986, p. 119. 183

W. Stauf, Wehrrecht Vol. I, supra η. 79, Soldatengesetz, Sect. 30 No. 2.

388

Georg Nolte and Heike Krieger

5. Rules Governing Working Time a. Working Time and Compensation for Overtime In Germany, soldiers must - unlike other civil servants - generally work 46 hours a week (wöchentliche Rahmendienstzeit). In the 1980's, soldiers' interest groups criticised the fact that, in contrast to all other public employees, soldiers were not covered by any regulations concerning working hours. The extreme length of working time was considered to be an urgent social problem. It was held that the armed forces' mission did not exclude a regulation of working hours, as long as such a regulation took into account the flexibility necessary for military effectiveness. As a response to this discussion, regulations on compensation for overtime were introduced, namely by the Ordinance on Higher Pay for Soldiers with Particularly Long Working Hours.184 Before 1995, compensation for overtime was granted in the form of extra leave. This practice was criticised by superiors. Therefore, the ordinance was rephrased according to military needs. The ordinance now provides that the soldiers receive money as a compensation for overtime work, if leave cannot be granted due to some practical reason. Thus, soldiers usually receive money as compensation. However, since the grounds for refusal of leave are not made clear, the regulation is still criticised by soldiers' interest groups. In cases where soldiers serve abroad, compensation for overtime is not granted if supplementary pay for staying abroad (Auslandsdienstbezüge) has been granted.185 Compensation for overtime does not apply during a State of Defence.186 b. Recreational Holidays and Special Leave Soldiers' rights to holidays are based on Section 28 SG. Recreational holidays and special leave are regulated in detail in the Ordinance on Holidays and Special Leave for Soldiers,187 and in service regulations concerning the ordinance.188 Extra holidays may be granted after an extremely demanding operation, in particular after manoeuvres in larger units, manoeuvres under difficult

184

Verordnung über den erhöhten Wehrsold für Soldaten mit besonderer zeitlicher Belastung of 2 June 1989, Bundesgesetzblatt Vol. I, p. 1075. 185

Sect. 3 No. 2 of the Ordinance.

186

Sect. 3 No. 5 of the Ordinance.

187

Soldatenurlaubsverordnung of 15 May 1997, Bundesgesetzblatt Vol. I, p. 1135.

188

Ausführungsbestimmungen zur Soldatenurlaubsverordnung, ZDv 14/5.

Military Law in Germany

389

circumstances, humanitarian operations, or continuous absence from the native port.189 Recreational holidays and special leaves must be distinguished from other forms of leave, such as: leave during leisure time (Ausgang), permission to leave in order to organise personal affairs (Dienstbefreiung), compensation for overtime (Freistellung vom Dienst und Freizeitausgleich für die Inanspruchnahme durch Rufbereitschaft), and absence from the service in order to pursue an education (Freistellung vom militärischen Dienst). In cases of recreational holidays or special leave, the soldier is entitled to leave the military base for at least one whole day. Other forms of leave entitle the soldier only to an absence of less than one day. Regulations for recreational holidays are basically identical to those of the federal civil servants. The soldier has certain obligations: for instance, he may not split his holidays. Holidays shall be denied if compelling reasons of the military service so demand, especially if the effectiveness of the troops is endangered. The refusal must be given in written form and must include a proposal for an alternative period in which the holidays may be taken. In case of a revocation of holidays, the soldier may receive compensation for damages. The length of the holidays depends on the age of the soldier. Between 26 and 30 days are granted. Soldiers on holiday are required to carry with them a note confirming their leave ( Urlaubsschein). With regard to special leave (Sonderurlaub), essentially the same rules apply as for civil servants. Generally, special leave is granted if it does not interfere with the functioning of the military service. In each case the question arises whether pay and support in kind will be given to the soldier during special leave. Whether pay and support are granted largely depends on the reasons for the granting of special leave, which are linked to the concept of the "citizen in uniform." Since the soldier is entitled to all fundamental rights, including political rights, special leave shall be granted for exercising these rights. Special leave is also granted for activities which are for the benefit of the community. The following reasons for special leave have been recognised: Special leave for exercising fundamental rights, for example, for voting; for participation in elections (soldier does not receive payment); for participation in town assemblies (soldier retains normal payment); for participation in religious activities of the chaplainry, such as religious exercises or a pilgrimage; for participation in activities of soldiers' interests groups; for participation in scientific meetings and certain educational meetings if they are useful for the military

189 Urlaub zur Erhaltung der Einsatzfähigkeit; Sect. 6 of the Ordinance on Holidays and Special Leave for Soldiers.

390

Georg Nolte and Heike Krieger

service (soldier receives payment); special leave for political education (granted only for soldiers seeking further education); for meetings of the executive committee of a party or of other social organisations; and for meetings of the most important ecclesiastical organisations. Special leave for the benefit of the community, for example, for participation in police or court action, honorary activities, or jury duty (only if there is a legal obligation to participate and if the soldier has not applied for the activity) (soldier receives payment), for taking part in measures of civil defence (soldier receives payment), for military-related educational activities with children (soldier receives payment for 10 days), for the maintenance of war cemeteries (soldier receives half-payment for up to 10 days). Other reasons for special leave include: for sports activities such as the Olympic Games; for personal or family reasons; for the preparation of a civilian profession. The granting of maternity leave (Mutterschutz und Erziehungsurlaub) is linked to the constitutional norms protecting the family (Article 6 (4) of the Constitution). There are two special ordinances regulating maternity leave.190 These ordinances deal with the protection of pregnant soldiers as well as the period of special leave. The regulations are more or less identical to those for civil servants. According to the first ordinance, female soldiers are entitled to a period of 6 weeks of paid leave before the birth of their child and two months of paid leave after the birth. The second ordinance grants unpaid leave of up to three years to female as well as male soldiers who want to raise their child themselves. There is the possibility that such leave will be refused or revoked in case of vital defensive need, such as a state of war or requirements of military operability and effectiveness in peace-time.

6. Legal Remedies, in Particular the Right to File a Complaint In Germany, soldiers have numerous options for legal remedy. In order to reconcile the effectiveness and flexibility of the armed forces with the protection of the individual soldier's rights, a special system of complaints has been created. There are formal complaints including the complaint concerning the relation between superior and subordinate, the complaint in disciplinary affairs, and the complaint in administrative matters, as well as petitions including the informal complaint, the parliamentary petition, and the petition to the Ombuds190 Mutterschutzverordnung für Soldatinnen of 2 October 1997, Bundesgesetzblatt Vol. I, p. 2453; Erziehungsurlaubsverordnung für Soldaten of 25 April 1995, Bundesgesetzblatt Vol. I, p. 584.

Military Law in Germany

391

person. The difference between the various formal complaints is sometimes unclear, and is therefore criticised in the academic literature.191 The procedure and the competent court depend on the content of the complaint. Complaints concerning the relationship between superior and subordinate go to the Administrative Military Courts, while complaints in administrative matters go to the Special Chambers for Military Law at the Federal Administrative Court. New proposals have suggested abandoning the differentiation between these two kinds of formal complaints, since it has proven to be unpractical and it lacks the required legal certainty.192 a. Formal Complaints The formal rights to file a complaint enable the soldier to go to court with almost any question concerning the military order, so that no aspect is, in principle, excluded from the possibility of judicial review. Even internal service issues are subject to judicial control. The Law on Complaints by Soldiers (WBO) specifies the constitutional guarantee of legal protection for everybody to the situation of soldiers (Article 19 (4) of the Constitution). The fact that no disciplinary measures are permissible in cases of an unjustified complaint (Section 2 WBO) marks the difference to historical predecessors of the Law on Complaints of Soldiers. The "citizen in uniform" should be able to raise a complaint free from intimidation. The law protects the right to complain by making it a criminal act if a superior exerts pressure on a subordinate not to raise a complaint (Section 35 WStG). It is considered as a sign for the validity of the principle of the rule of law in the armed forces that the right to file a complaint was introduced by an Act of Parliament and not by a governmental ordinance. It is believed that only if the military leadership is convinced of the necessity for legal protection of the individual soldier can it enhance military effectiveness on the basis of the rule of law. For reasons of military effectiveness, a complaint has no suspensive effect except in disciplinary cases; the execution of commands will not be delayed. According to Section 34 SG and Section 1 of the Law on Complaints of Soldiers ( Wehrbeschwerdeordnung - WBO),193 the soldier has a right to com191 H. V. Böttcher/K. Dau, Wehrbeschwerdeordnung, see supra n. 141, Introduction No. 57; W. Scherer/R. Alff, Soldatengesetz (7 edn, Munich, 2003), Sect. 59 No. 9; D. Walz, Normenflut und Regelungsdichte - Zur Reformbedürftigkeit des Wehrrechts Beispiel Wehrbeschwerdeordnung, (1987) Neue Zeitschrift für Wehrrecht 230, 234. 192

E. Lingens, Noch besserer Rechtsschutz für Soldaten, (2002) Neue Zeitschrift Wehrrecht 201.

193

Wehrbeschwerdeordnung of 11 September 1971, Bundesgesetzblatt Vol. I, p. 1737.

für

392

Georg Nolte and Heike Krieger

plain if he thinks he has been treated unjustly by a superior (Organbeschwerde), or if he has been injured by the behaviour of a comrade who violated service duties (Kameradenbeschwerde). In addition, the soldiers' spokesman (Vertrauensperson) is entitled to raise a complaint.194 These complaints are directed against an act based on the relations between superior and subordinate and concerning military order and obedience (truppendienstliche Beschwerde). The superior will examine whether the treatment about which the soldier complains was or was not appropriate. A complaint is permissible if the soldier's rights and interests have been affected195 by superiors or other organs of the armed forces (Dienststellen). The complaint must be directed against orders or other measures in the relationship between superior and subordinate. This includes also factual acts, such as unfair or harassing treatment by a superior.196 The procedure in such cases includes three steps: the complaint to the superior {Beschwerde),197 a further complaint to his superior (weitere Beschwerde),198 and finally an application for a decision by the Administrative Military Court (Antrag auf gerichtliche Entscheidung).199 There are no further remedies against the decision of the Administrative Military Court.200 However, Administrative Military Courts are entitled to refer a case to the Federal Administrative Court if an important question of law is involved.201 Examples of matters that may give rise to a complaint are, inter alia: the refusal of an application for holidays or special leave, the refusal to give permission for secondary activities (Nebentätigkeiten) or for transfer to another post, unit, or formation, the dissatisfaction of the complaint with examination results, evaluation of the soldier's abilities, or simple reproaches. An important aspect of this particular form of complaint is the complaint against a fellow soldier (Kameradenbeschwerde). The complaint against a fellow soldier is directed against the behaviour of a comrade which is contrary to his duties. It is an exception to the general character of the complaint according to Section 1 (1) WBO, in that it is not concerned with the relationship between the

194

See below V.7.

195

H. V. Böttcher/K. Dau, Wehrbeschwerdeordnung, see supra n. 141, Sect. 1 No. 77.

196

H. V. Böttcher/K. Dau, Wehrbeschwerdeordnung, see supra n. 141, Introduction No. 59. 197

Sect. 5-14 WBO.

198

Sect. 16 WBO.

199

Sect. 17-20 WBO.

200

Sect. 18 (2) WBO.

201

Sect. 18 (4) WBO.

Military Law in Germany

393

superior and the subordinate.202 In substance, this complaint is the notification of a possible disciplinary offence to the superior who is supposed to take actions in order to restore the disturbed solidarity and loyalty within the troops. It is close to the report of occurrences to a superior {Meldung). The existence of such a form of complaint seems to be desirable for the solidarity of the armed forces, but is not required by Article 19 (4) of the Constitution, which sets out the constitutional standards of legal protection. However, an unsuccessful complaint may not be brought before a court.203 The complaint in disciplinary affairs (Disziplinarbeschwerde) is a special form of the general complaint concerning the relationship between superior and subordinate. By a disciplinary complaint, a soldier can challenge the disciplinary measure itself. This disciplinary complaint is regulated in Section 38 of the Law on Military Discipline ( Wehrdisziplinarordnung - WDO), which refers to the Law on Complaints of Soldiers. In case of a complaint against disciplinary measures, the appeal will go directly to a Administrative Military Court. The shortened procedure is justified because the final decision on a disciplinary sanction should not be further delayed.204 The complaint in administrative matters (Beschwerde in Verwaltungsangelegenheiten) is concerned with the relationship between the soldier as an employee and the armed forces as his employer (Dienstherreneigenschaft).205 In such cases, the complaint serves as a preliminary administrative procedure.206 The following procedure applies: first the soldier must bring his complaint to the competent superior according to the rules laid down in the WBO. If the complaint is not settled positively, the soldier can address the general administrative courts.207 Such a complaint may concern matters such as the beginning and end of military status, promotion and dismissal, as well as (according to Section 17(1) WBO) allowances and support in kind, the general right to care (Section 31 SG), or the right to free medical care (Section 30 SG).208 If the soldier's complaint is directed against measures or decisions of the Ministry of

202 W. Stauf, Wehrrecht Vol. II (Baden-Baden, 2002), Wehrbeschwerdeordnung, Sect. 1 No. 44. 203

See above V.2.

204

See below VII.If.

205

H. V. Böttcher/K. Dau, Wehrbeschwerdeordnung, see supra n. 141, Introduction No. 69; BVerwGE 53, 8 et seq. 206

Sect. 23 (1) WBO.

207

Sect. 59 SG in conjunction with Sect. 23 (1) WBO.

208

See O. v. Lepel, Der Rechtsweg bei Beschwerden in Heilbehandlungsangelegenheiten, (1980) Neue Zeitschrift für Wehrrecht 1 et seqq.

394

Georg Nolte and Heike Krieger

Defence or of the Inspectors of the Troops (Truppeninspekteure), the soldier can bring his case before a Special Chamber for Military Law of the Federal Administrative Court. b. Rights to Petition There are several rights to petition: a parliamentary right to petition, a right to an informal complaint (Dienstaufsichtsbeschwerde),m and a right of petition to the Ombudsperson (Eingaberecht nach § 7 des Gesetzes über den Wehrbeauftragteri). Article 17 of the Constitution grants every citizen the right to petition. It is disputed whether the prohibition on collective complaints applies to this form of complaint as well.210 Since it is believed that a petition to a legislative organ does not entail the same dangers for military discipline as a complaint to a superior, collective petitions according to Article 17 of the Constitution are by most authors felt to be permissible. In addition to the formal rights granted by the Law on Complaints, a general right to informal complaint based on Article 17 of the Constitution exists. Since the WBO offers comprehensive possibilities for formal complaints, the permissibility of informal complaints is disputed. However, Article 17 of the Constitution, which grants the right to petition, also covers the informal complaint, hence its separate existence seems justified.211 This right to informal complaint is of particular importance if the prerequisites of a formal complaint have not been met, i.e. if the soldier is not challenging the action of a superior. The right to submit a petition to the Ombudsperson is an additional form of parliamentary petition. Again, collective complaints are forbidden.212 The Parliamentary Ombudsperson for the Armed Forces is a government bureau which monitors compliance with the principles of "Innere Führung" and the observance of soldiers' rights. The Parliamentary Ombudsperson is established by virtue of Article 45 b of the Constitution. Detailed regulations are contained in the Law on the Ombudsperson for the Armed Forces (Gesetz über den Wehrbeauftragten). 213 The Ombudsperson is answerable solely to Parliament. Should 209

G. Diirig, Art. 17 GG, in T. Maunz/G. Dürig/R. Herzog, Grundgesetz-Kommentar (Munich, 1960), No. 20. 210

H. V. Böttcher/K. Dau, Wehrbeschwerdeordnung, see supra n. 141, Introduction No. 123. 211

See further H. V. Böttcher/K. Dau, Wehrbeschwerdeordnung, see supra n. 141, Introduction Nos. 108-120. 212

Section 7 of the Law on the Ombudsperson for the Armed Forces.

213

Gesetz über den Wehrbeauftragten of 16 January 1991, Bundesgesetzblatt Vol. I, p. 47.

Military Law in Germany

395

information about undesirable developments in the armed forces come to the Ombudsperson's notice, he or she will inquire into the circumstances. The Ombudsperson has no authority to redress violations, but he or she will examine the whole situation on a factual and legal basis. After the investigation, the Ombudsperson will answer the petitioner and report to the soldier's superiors. A soldier need not make a formal petition. He or she may approach the Ombudsperson directly at any time. No personal rights need to have been infringed upon to justify appeal to the Ombudsperson. The soldier can raise general questions about military service or the violation of a comrade's rights. In practice, soldiers often send a copy of their formal complaints to the Ombudsperson. In such cases, the Ombudsperson acts only if the formal complaint procedure appears to have produced no result. c. Other Remedies Finally, the soldier has the possibility to remonstrate, meaning he can ask a superior to change an order because the soldier thinks the order inappropriate or illegal (Gegenvorstellung). The soldier may also report any incidents to his superior (Meldung).

7. Institutional Representation German soldiers enjoy institutional representation, which is regulated by the Law on Institutional Representation of Soldiers of 1991 (Soldatenbeteiligungsgesetz - SBG). Soldiers' interests groups, above all the Bundeswehrverband, aim to modify the institutional representation of soldiers so that it conforms with the institutional representation of other civil servants as enshrined in the Bundespersonalvertretungsgesetz,214 Soldiers are represented by spokesmen ( Vertrauenspersonen), boards of spokesmen, or boards of personnel representatives (Gremien von Vertrauenspersonen und Personalbeauftragten). Section 1 (3) SBG states explicitly that the soldier may always address himself directly to his superior irrespective of the spokesman. In mobile parts of the armed forces, soldiers are represented by spokesmen and boards of spokesmen. In other offices and installations of the armed forces, soldiers elect representatives for personnel boards.215 214

On the legislative history see W. Stauf, Wehrrecht Vol. I, supra n. 79, Soldatenbeteiligungsgesetz, Introduction Nos. 1-8; see also A. Gronimus, Die Beteiligungsrechte der Vertrauenspersonen in der Bundeswehr (3 ed., Regensburg/Bonn, 1997). 215

Sect. 49 SBG.

396

Georg Nolte and Heike Krieger

The SBG provides for a separate spokesman in all units. It is the task of the spokesman to contribute to the smooth co-operation of superior and subordinate personnel. A spokesman is elected by and for each rank, within a unit, within headquarters, and within integrated or multinational sections, etc.216 A spokesman is elected for two years.217 The office of the spokesman enjoys special legal protections. It is provided that the spokesman must not be impeded in the exercise of his duties and must not be subject to any discrimination or disadvantages due to his post.218 In addition, the spokesman may be transferred to another post only if this is indispensable for service reasons.219 The spokesman may raise a complaint if he thinks he has been obstructed in the exercise of his competences or has suffered disadvantages because of his position. The next disciplinary superior decides on any complaints against the spokesman himself.220 Spokesmen and superiors are expected to co-operate closely. The disciplinary superior must support the spokesmen, inter alia, by providing timely and comprehensive information on pertinent issues. This includes the possibility to consult the personal file of a soldier upon his consent. The spokesman is competent to act in cases concerning: personnel matters, such as transfer to another post (Section 23 SBG), the organisation of the dayto-day service (Section 24 SBG), general care for the soldier (Fürsorgepflicht, Section 31 SG and Section 25 SBG), support during preparation to enter a civilian profession (Section 26 SBG), disciplinary measures, if the soldier concerned agrees (Section 27 SBG), proposals for commendation (Sections 28, 29 SBG), and complaints (Section 30 SBG). The spokesman has a right to be heard by the superiors and is allowed to make proposals to superiors under certain conditions.221 The spokesman must be heard in cases concerning the planning of the daily service, for instance, with respect to the service order for the unit (Dienstplan).222 He must also be heard in cases of complaints,223 in personnel affairs, such as the transfer to another post,224 or if certain measures of commendation are being contemplated.225 The spokesman is entitled to make pro216 217 218 219 220 221 222 223 224 225

Sect. 2 (1) SBG. Sect. 9 SBG. Sect. 14 (1) SBG. Sect. 15 SBG. Sect. 16 SBG. Sect. 20, 21 SBG. Sect. 24 (1) SBG. Sect. 30 SBG. Sect. 23 (4) SBG. Sect. 29 SBG.

Military Law in Germany

397

posais concerning the daily service and further education of soldiers. He may also nominate soldiers for formal commendations. In certain cases of personnel affairs, agreement between the spokesman and the superiors is necessary. If it is not possible to reach agreement, the case may even go to a board of arbiters at an Administrative Military Court (Mitbestimmung).226 The board of arbiters consists of the presiding judge, who is a judge of the competent Administrative Military Court, the superior of the soldier concerned and his superior, the spokesman, and one of the spokesman's representatives. If an agreement cannot be reached, the board renders an advisory opinion. If the competent superior does not want to follow this opinion, he must bring the affair to the competent inspector of the troops (Truppeninspekteur).227 Cases which might concern co-determination include certain specific issues of the daily service order 2 2 8 as well as certain aspects of the superior's duty to care for his troops according to Section 31 SG. 229 Assemblies of spokesmen are constituted above the level of the units in order to represent common interests of soldiers towards commanding officers.230 Members of the board have essentially the same competences as the individual spokesmen. There is a further board of spokesmen at the level of the Ministry of Defence. Members are elected by all spokesmen. This board has the same competences as the assemblies of the spokesmen. 231 It is heard in cases of basic regulations of the Ministry of Defence in personnel, social, or organisational issues, including issues concerning rights of co-determination. 232 In cases of disagreement, the case may be referred to the board of arbiters. The board gives an advisory opinion but the Ministry of Defence is competent to make the final decision. For soldiers who are not in mobile parts of the armed forces, the rules on institutional representation for civil servants apply. 233

226 227 228 229 230 231 232 233

Sect. 22, 23 SBG. Sect. 22 (2) SBG. Sect. 24 (5) SBG. Sect. 25 (3) SBG. Sect. 32 SBG. Sect. 35 SBG. Sect. 37 (1) SBG. Sect. 48 et seqq.; Sect. 2 SBG; W. Stauf, Wehrrecht Vol. I, supra n. 79, Sect. 1 No. 4.

Georg Nolte and Heike Krieger

398

VI. The Relationship of the Superior to Subordinate Personnel 1. Relationship Between Superior and Subordinate a. Definition According to Section 1 (5) SG, superiors are those who are entitled to give military orders. German military law distinguishes between the superior in command and the superior in disciplinary affairs. According to Section 1 (6) SG, there is a special superior for disciplinary matters. Disciplinary superiors are those superiors who are entitled to use disciplinary power over the soldiers under their command. The different types of command relationships between the superior and the subordinate are defined in the Ordinance on Military Command 234 and the Law on Military Discipline ( Wehrdisziplinarordnung). Command power and disciplinary power are usually exercised by the same person. According to Section 27 (1) WDO, officers have disciplinary power as far as provided for by the Law on Military Discipline.235 With respect to disciplinary power, the Minister of Defence is the highest superior (Section 27 (1) WDO). Section 28 WDO describes in detail which ranks have disciplinary powers. While command power can be transferred under the conditions described below, disciplinary power cannot be transferred (Section 27 (2) WDO). Command power is regulated in Sections 1 to 6 of the Ordinance on Military Command. Thus, while disciplinary power is regulated by formal parliamentary law, command power is defined in a governmental regulation, and the basic principles are laid down in Section 10 (5) SG. The Ordinance on Military Command ( Verordnung über die Regelung des militärischen Vorgesetztenverhältnisses) gives details on who is entitled to give orders: -

Direct superior (Unmittelbarer Vorgesetzter).m The direct superior who leads a military unit is generally entitled to give orders whether he is on or off duty. The direct superior shall not intervene in the technical service of subordinate soldiers who are under the command of a technical superior ("technical" here in this sense refers to those occupational professions which are not of an essentially military character, e.g. medical or engineering specialties).

234

Verordnung über die Regelung des militärischen Vorgesetztenverhältnisses of 4 June 1956, Bundesgesetzblatt Vol I, p. 459.

235 See also Decree on Disciplinary Powers of Officers (Erlaß über die Disziplinarbefugnis von Offizieren), Zentrale Dienstvorschrift ZDv 14/3 Β 119. 236

Sect. 1 Ordinance on Military Command.

Military Law in Germany

-

-

399

Technical superior (Fachvorgesetzer).2il The technical superior of a technical unit is entitled to give orders to soldiers subordinated for tasks within the specific unit. Superior for special areas or special activities ( Vorgesetzter mit besonderem Aufgabenbereich)238 The superior for special areas or special activities is entitled to give orders with regard to his special area of competence or with regard to the accomplishment of his special activity. As far as it is necessary for the accomplishment of his special activity, he is also entitled to give orders to soldiers who are off-duty.

In these three cases the authority of the superior is based on his functional position. -

-

-

Superior due to rank ( Vorgesetztenverhältnis auf Grund des Dienstgrades).239 Superiors due to rank have the authority to give orders to any subordinate soldier. On board warships and inside military bases, superiors "due to rank," whether on duty or not, have the power to command any subordinate soldier. Superior by special order (Vorgesetztenverhältnis auf Grund besonderer Anordnung).240 A superior can order subordinate soldiers to place themselves under the command of another soldier for special tasks within the new superior's power to command. Generally soldiers with a lower rank are not ordered to be superior to soldiers with a higher rank. The superior by special order is entitled to give orders to the soldiers subordinated to him as far as this is necessary for the accomplishment of his special task. Superior by declaration (Vorgesetztenverhältnis auf Grund eigener Erklärung).241 Superior ranks (sergeants and officers), whether on or off duty, may declare themselves as superiors over soldiers who are not of higher rank in the following situations: in case of emergency requiring immediate help, if the maintenance of discipline or security requires immediate action, or if a unified command needs to be achieved to handle a critical and temporary situation irrespective of the command structure of the soldiers present. The superior by declaration is entitled to give orders to the soldiers over whom he has declared himself superior as far as the situation requires.

237

Sect. 2 Ordinance on Military Command.

238

Sect. 3 Ordinance on Military Command.

239

Sect. 4 Ordinance on Military Command.

240

Sect. 5 Ordinance on Military Command.

241

Sect. 6 Ordinance on Military Command.

400

Georg Nolte and Heike Krieger

The Minister of Defence and his parliamentary secretaries are superiors; orders of the Minister are considered to be military orders if they are signed "Im Auftrag" or if they are orders in the legal sense, even if they are signed by a civilian member of the Ministry of Defence. b. Duties of the Superior Section 10 SG describes the special duties of superiors in relation to subordinates. While Section 10 (1) is a "should"-provision ("The superior ought to serve as an example in fulfilling his duties and tasks"), the remaining provisions in Section 10 SG create strictly binding duties on the superior. According to Section 10 (2) SG, the superior is responsible for the discipline of his subordinates and supervises the fulfilment of their duties. The superior must ensure that subordinates do not violate military order. Section 10 (3) SG creates the duty of the superior to care for the subordinate soldiers. This is a specific application of the general duty of the German State to care for soldiers and their families, which is provided for in Section 31 SG.242 Courts have emphasised that a superior who infringes on a subordinate's dignity and honour has grossly neglected his duties, and failed as a superior officer who must be constantly aware of the permissibility of his actions. This duty to respect the dignity of persons applies to all branches of governmental power. A soldier who neglects this duty infringes on the basic principles of the Constitution in relation to the armed forces ( Wehrverfassung), as well as the principles of Innere Führung (which are not legally binding as such). Respect for human dignity is of particular importance in the military, given its hierarchical structure.243 The armed forces rely on the principles of order, obedience, and discipline, which are based on the authority of the superior as well as on the obedience of the subordinate. Therefore, superior officers have a special obligation to behave in an exemplary manner. A superior who violates the dignity of subordinates breaches military discipline to a considerable extent and disturbs the effectiveness of the armed forces.244 The duty to encourage mutual trust has a clear function both for the armed forces' compliance with its constitutional mission in a democratic State under the rule of law, and for the efficiency of daily military service.245 Military service demands mutual trust and the ability to rely on one another. A superior infringing the rights of a subordinate harms

242

W. Stauf, Wehrrecht Vol. I, supra n. 79, Soldatengesetz, Sect. 10 No. 9.

243

BVerwG 83, 300; 113, 70 (71).

244

BVerwG, Judgement of 26 September 1996 - 2 W D 33/95.

245

BVerwG 43, 149.

Military Law in Germany

401

the forces' solidarity and disturbs the functioning of the service, and thus the functioning of the troops.246 Behaviour violating human dignity includes insulting or degrading treatment, such as pointing a weapon at the head of a subordinate, commanding physically demanding activities when the subordinate is physically exhausted,247 sexual harassment,248 and forcing subordinates to kneel before the flag on a bamboo stick as a means of education.249 The Courts emphasise the principle that a superior is not allowed to touch his subordinates except in cases in which there are no other means to enforce a military order.250 The Courts apply particularly strict standards in the relationship of a superior towards conscript soldiers, who are considered to be the most vulnerable members of the armed forces since they especially depend on their superior officer during their first educational steps as soldiers.251 Section 10 (3) SG sometimes overlaps with Section 12 SG. Section 12 SG creates a duty of comradeship. A superior can violate his duty of comradeship and his duty to care by the same act.252 According to Section 10 (6) SG, officers and non-commissioned officers must, whether on or off duty, exercise restraint when expressing themselves as far as this is necessary to preserve confidence in their position as a superior. This rule is obviously an important restriction of the freedom of expression, especially since it extends into the non-military sphere. The rule was considered violated by an officer who had compared the administrative actions taken by a university of the Armed Forces with those taken by a Nazi organisation.253 It was not considered violated by an officer who presented a pacifist pamphlet in the presence of the press to a mayor, but in civilian clothing and without indicating that he was a soldier.254 c.

Use of Force to Secure

Compliance

with

Orders

According to Section 10 (5) SG, superiors may implement their commands only in a proportional and appropriate manner.255 There is no explicit statutory rule 246

BVerwG 86, 218 (222); 103, 257 et seq.

247

BVerwG 113, 70(73).

248

BVerwG, Judgement of 15 February 2000 - 2 W D 30/99.

249

BVerwG 113, 272.

250

BVerwG 93, 140 (142); BVerwG, (2001) Neue Zeitschrift für Wehrrecht 247.

251

BVerwG 113, 70 (76).

252

W. Stauf, Wehrrecht Vol. I, supra η. 79, Soldatengesetz, Sect. 10 No. 9.

253

BVerwG, Judgement of 2 December 1986,2 WDB 7/86.

254

BVerwG, (1985) Neue Juristische Wochenschrift 160.

255

W. Stauf, Wehrrecht Vol. I, supra η. 79, Soldatengesetz, Sect. 10 No. 44.

402

Georg Nolte and Heike Krieger

as to whether the superior is entitled to implement his orders through the use of force or weapons. The administrative regulation Gl Nr. 1/74 prohibits the use of firearms as well as the threat of the use of firearms for the implementation of commands. Some commentators assume that this regulation also applies during a State of Defence.256 However, according to travaux préparatoires Section 10 (5) allows for the use of weapons in cases of emergency.257 As a result, the permissibility of the right to use weapons is a subject of controversy, and the legal situation is not entirely clear.258 However, it must be assumed that the use of weapons is permissible in situations of legitimate self-defence according to the general rules of penal law. The use of force in order to ensure compliance with a command is not permissible since Section 10 (5) does not provide an authorisation that is framed in a sufficiently precise manner.259 The call that the Legislature precisely delimit the cases in which such a use of force would be permissible has not yet led to a change of legislation.260

2. Subordination of Soldiers to the Command of a Superior of Foreign Armed Forces From a German point of view, the subjection of a soldier to the command of a superior who belongs to foreign armed forces is an issue of constitutional law. It is a general rule of constitutional law that the power to restrict the fundamental rights and liberties of a person must be based on an Act of Parliament or on executive regulations which must themselves be based on a rather specific delegation of legislative powers by an Act of Parliament (see Article 80 of the Constitution). This rule is designed to ensure the democratic legitimacy and accountability of the restriction of rights. There are, however, two specific provisions which modify this rule in regards to non-German command over German troops: Article 24 (1) of the Constitution allows the exercise of public authority to be transferred to an "interstate entity" (zwischenstaatliche Einrichtung). Article 24 (2) permits Germany's integration into a system of mutual collective security. 256

W. Stauf, Wehrrecht Vol. I, supra n. 79, Soldatengesetz, Sect. 10 No. 45 et seq.

257

Deutscher Bundestag, 2. Wahlperiode, Drucksache 1700, p. 19.

258

On the debate see: K. Doehring, Befehlsdurchsetzung und Waffengebrauch (Bad Hom-

burg/Berlin/Zürich, 1968), p. 11 et seq. 259

Κ. Doehring, Befehlsdurchsetzung

und Waffengebrauch, supra n. 258, p. 24 et seq.

260

Κ. Doehring, Befehlsdurchsetzung

und Waffengebrauch, supra n. 258, p. 25; W. Stauf,

Wehrrecht Vol. I, see supra n. 79, Soldatengesetz, Sect. 10 No. 46.

Military Law in Germany

403

Taken together, these rules are said to prohibit a transfer of public authority to a single foreign state or to different foreign states.261 An "interstate entity" in the sense of Article 24 (1) must at least have international legal personality. It is therefore impossible to transfer public authority to a multinational unit which has no separate legal personality (and certain additional structural qualities). According to Constitutional Law, the full subordination of a German soldier to the command of a foreign commander (at least outside collective security systems according to Article 24 (2) GG) requires a transfer of governmental authority according to Article 24 (1) GG. Such a transfer of authority has not been brought about within NATO since only certain limited powers of command have been transferred.262 The individual soldier acts on the basis of the so-called Anweisung auf Zusammenarbeit (Instruction to Co-operate, Section 7 SG).263 This means that the German soldier receives an order from his superior in the sense of Section 11 (1) SG to follow the orders of the foreign commander. This (first) order is revocable at any time and limited in scope. In particular, it does not contain any disciplinary powers. Thus, the subjection of German troops or soldiers to NATO command is not sufficiently far-reaching as to constitute a "transfer which requires specific legislative approval" (in addition to the existing legislative approval to the NATO Treaty).264 However, the question remains as to how comprehensive command structure has to be in order to require specific enabling legislation. The transfer of disciplinary powers to an international institution is the most obvious case which would likely require a specific legislative basis. The other countries under review use comparable models in order to subordinate their soldiers to the command of a foreign superior within NATO structures. The national understanding of a revocable transfer which is limited in scope finds its equivalent in the NATO terms "full command" on the one hand and "operational command" and "operational control" on the other. These terms 261

F. Kirchhof, Deutsche Verfassungsvorgaben zur Befehlsgewalt und Wehrverwaltung in multinationalen Verbänden, (1998) Neue Zeitschrift für Wehrrecht, 152, 153; H. Jarass, Art. 24 GG, in H. Jarass/B. Pieroth (ed.), Grundgesetz-Kommentar, No. 5. 262

NATO was not recognised as a system of collective security until the so-called "Somalia-Decision" of the German Constitutional Court; BVerfGE 90, 286 (387 et seqq.). 263 264

Zentrale Dienstvorschrift ZDv 1/50, No. 30.

D. Fleck, Befehls- und Kommandogewalt über deutsche Streitkräfte in multinationalen Verbänden, in: R. Geiger (ed.), Völkerrechtlicher Vertrag und staatliches Recht vor dem Hintergrund zunehmender Verdichtung der internationalen Beziehungen (Baden-Baden 1999), p. 163 at 172; T. Stein, Rechtsfragen des Eurokorps und der deutsch-französischen Brigade, in: C. Tomuschat (ed.), Rechtsprobleme einer europäischen Sicherheits- und Verteidigungspolitik (Heidelberg 1997), p. 53 at 60.

404

Georg Nolte and Heike Krieger

serve not only the national and constitutional requirements for the limitation of the transfer of command power265 but also a proper military purpose. They are used in the national terminology of most of the countries under review as a description of the differentiation between the transfer of full or limited command power. According to the prevailing opinion in all of these countries, the present practice of transfer of operational command or operational control does not require a specific transfer of governmental authority which would have to satisfy specific constitutional requirements. It is generally accepted that only operational command or operational control is transferred, whereas full command remains with the national authorities. Insofar as this is the case, governments are entitled to subordinate their forces under foreign command without participation of their parliaments. This theory has, however, come under heavy attack in the German academic literature, since, for all practical purposes and from the perspective of the soldier, the foreign commander may take the decisive step which restricts his rights, even if the disciplinary power remains with the German authorities. Another argument against this theory is that it circumvents the purpose of the constitutional assignment of the command power to the Minister of Defence, who is responsible for the exercise of this power before the German Parliament. He cannot be held accountable, it is argued, if officers who are beyond his control exercise this power.266 One author who agrees that the theory of Anweisung auf Zusammenarbeit is unconvincing nevertheless arrives at the conclusion that the power to issue commands can be transferred to a large extent by executive agreement or simple order to foreign soldiers. He postulates that it is possible to conceive of the foreign soldier as exercising German public authority by way of his limited functional integration into the German armed forces.267 A counterargument to this theory is that the foreign commander normally wields a wide discretion which he exercises in the spirit of his own national armed forces, and that it is a fiction to assume that his decisions will be in the spirit of the German Minister of Defence, a spirit which has been imbued into German officers but not foreign officers by various means of education and instruction. A precise legal distinction between the exercise of transferred command authority over the individual soldier on the one hand, and over whole units on the other hand, has not yet been developed in any of the countries under review. 265

BVerfGE 90, 286 (308).

266

J. Wieland, Die Beteiligung der Bundeswehr an gemischtnationalen Einheiten, in: R. Grawert et al. (ed.), Festschrift für Ernst-Wolfgang Böckenförde zum 65. Geburtstag (Berlin, 1995), p. 219 at 232.

267

F. Kirchhof, Deutsche Verfassungsvorgaben zur Befehlsgewalt und Wehrverwaltung in multinationalen Verbänden, (1998) Neue Zeitschrift für Wehrrecht 152, 157-161.

Military Law in Germany

405

The opinion prevails that the command authority of a foreign commander is exercised only towards the individual soldier. This means that it is exercised either towards the commander of the whole unit (and thus only indirectly towards the unit), or directly towards an individual soldier who belongs to such a unit. In this respect, there is no constitutionally relevant difference between the co-operation within NATO Headquarters and the co-operation between soldiers of different nationalities during common operations on foreign territories (e.g. KFOR). According to German Constitutional Law, in both cases there is a restriction of governmental authority according to Article 24 (2) GG. A more extensive transfer of command authority or command power is possible within multinational units, however, if it is based on an international treaty which has been ratified by a parliament. The 1 (German/Netherlands) Corps is such a unit. How far the so-called "integrated directing and control authority" in the sense of Article 6 of the Treaty establishing this unit exceeds the NATO practice, and whether this is a case of Article 24 (2) GG or Article 24 (1) GG, is open to debate. A specific issue in regard to the transfer of governmental authority arises from the bi-national guard service exercised by the 1 (German/Netherlands) Corps. By placing the guard soldiers under the exclusive command of the receiving state for the duration and function of their guard service (Article 10 of the Convention on the General Conditions for the 1 (German/Netherlands) Corps),268 command power over these soldiers may very well have been transferred. This issue has prolonged the process of legislative approval in the Netherlands, but it has so far not been seen as a problem in Germany.

3. Service Regulations and their Legal Nature In Germany, service regulations for the armed forces are comparable to internal administrative regulations within the civil service. They are issued by the German Ministry of Defence. They do not by themselves create rights and duties for soldiers, but they make legal rights or duties more specific. Thus, they can also include binding military commands. According to Section 10 (4) SG, an order which contravenes a service regulation is illegal. Therefore, service regulations can limit a superior's power to issue orders. For instance, aspects of military organisation and subordination are regulated in the joint service regulation "Grundbegriffe zur militärischen Organisation, Unterstellungsverhältnisse und Dienstliche Anweisungen", ZDv 1/50. 268

Art. 10 (2): For the purposes of the execution of their guard duties, bi-national guards are exclusively subordinated to the competent superior guard authorities of the receiving State.

406

Georg Nolte and Heike Krieger

VII. Sanctions 1. Disciplinary Law A parliamentary law regulates disciplinary powers and disciplinary measures: the Law on Military Discipline ( Wehrdisziplinarordnung - WDO).269 The Law on Military Discipline is considered to be in conformity with the European Convention on Human Rights.270 a. Disciplinary Power Disciplinary power is the authority to impose disciplinary measures. Only officers can be disciplinary superiors. Disciplinary power depends on the functional position of the officer and cannot be delegated. The Minister of Defence holds the supreme position in disciplinary matters (Section 27 WDO). Disciplinary power is normally derived directly from the law. However, the Minister of Defence may also grant a superior officer the right to use disciplinary power. Section 28 describes in detail who possesses disciplinary authority. Generally, the direct superior exercises disciplinary power except in cases, inter alia, in which he is involved in the offence (Sections 29, 30 WDO). The direct disciplinary superior is the superior with disciplinary power in the lowest position. The disciplinary superior next in hierarchy is competent in other cases. Section 31 WDO contains a so-called emergency disciplinary power (Notdisziplinarbefugnis). Local commanders, i.e. commanders with the power to command within a certain territorial area or with a certain competence, are entitled to exercise disciplinary power according to rank.271 The Law on Military Discipline provides for two different forms of sanctions. Minor sanctions - such as a reprimand - can be imposed by the soldier's superiors, whereas grave sanctions which affect the status or the career of the soldier - such as a degradation - can be inflicted upon the soldier only by an Administrative Military Court. The extent of the power to impose minor sanctions depends on the rank of the superior. The Ministry of Defence and brigade commanders can impose all minor sanctions on all soldiers. A battalion commander can impose all minor sanctions against officers, NCOs, and ranks, but is not entitled to put an officer into detention. A company commander may

269

Wehrdisziplinarordnung of 16 August 2001, Bundesgesetzblatt Vol. I, p. 2093.

270

See T. Stein, Europäische Menschenrechtskonvention und Wehrdisziplinarrecht, (1977) Neue Zeitschrift für Wehrrecht 1 et seqq. 271

See Zentrale Dienstvorschrift ZD 14/3 Β 110.

Military Law in Germany

407

use only a reprimand against officers, and is not entitled to put members of the lower ranks into detention for longer than 7 days. All other minor sanctions are available to him (Section 28 WDO). According to Section 23 SG, there is only one basic disciplinary offence: the wrongful violation of a soldier's duties as described in the SG. The competent superior is free to decide whether and how to react to a disciplinary offence committed with regard to the service. For this decision he must take into account the principle of proportionality.272 The superior must consider the soldier's behaviour in and outside the military service.273 b. Relation to Criminal Law Disciplinary law and criminal law procedures exist independently of each other. If the infringement on the service duties is also a criminal offence, the superior will hand over the case to the criminal prosecutor if this is necessary for the maintenance of military order or because of the severity of the deed or of the wrong committed. In this case, there will be criminal proceedings separately from the disciplinary procedure. The disciplinary superior will still have to decide whether and what kind of disciplinary measures he wants to impose. Whereas the disciplinary procedure is at the discretion of the superior (Opportunitätsprinzip), the prosecutor must start to investigate and pursue criminal proceedings whenever he becomes aware of a crime (Legalitätsprinzip). During the criminal proceedings the disciplinary proceedings may be suspended,274 although suspension of the proceedings is rare in practice. A disciplinary proceeding before an Administrative Military Court must be suspended. It will be taken up again when the facts have been clarified, at latest after the end of the criminal proceedings.275 The factual findings of a legally binding criminal judgement are, in principle, also binding for the proceedings before the Administrative Military Court.276 If this system is seen against the background of the principle of the rule of law and the principle of proportionality, the necessity of regulating the relationship between disciplinary and penal sanctions becomes clear. If a court has passed a binding sentence on a soldier, the military superior is not entitled to impose any minor sanction except for disciplinary arrest. In cases of minor 272 273 274 275 276

BVerwG 113, 148. Sect. 15 (2) WDO. Section 33 (3) WDO. Section 83 WDO. Sect. 84 (1) WDO.

Georg Nolte and Heike Krieger

408

wrongs, disciplinary law and criminal law both impose the same fines. Therefore, it does not seem fair to combine disciplinary and criminal penalties when they are essentially identical.277 Disciplinary arrest may be imposed only if it is necessary to uphold military order or if the reputation and prestige of the armed forces so require.278 This may be the case if the offence provoked public attention.279 These rules also apply when criminal proceedings have been discontinued because the offence constitutes only a minor wrong. In cases of military arrest other forms of detention have to be deducted from the length of the arrest. If a disciplinary measure has already been imposed or executed, the criminal court has to deduct it from the penal sentence.280 The Constitutional Court has clarified this issue in several decisions.281 If a soldier has been acquitted, disciplinary measures may be imposed only if a disciplinary offence is committed that does not constitute a criminal offence.282 If the military superior decides to impose an additional disciplinary sanction, the factual findings of the criminal court are binding on him (Section 34 (1) WDO). c. The Purpose of Disciplinary

Law

The purpose of disciplinary law is to secure the (future) efficiency of the armed forces, whereas the purpose of criminal law is to hold the perpetrator responsible for a (past) committed wrong. The use of appropriate measures should make the soldier understand that he behaved in a manner incompatible with his duties. The superior is to educate the soldier in the hope of preventing undutiful behaviour in the future.283 d. Disciplinary

Measures

Section 22 WDO provides for the following minor sanctions which may be inflicted by disciplinary superiors: reprimand (a formal reproach of wrongful behaviour),284 severe reprimand (a reproach that will be made in public in front 277

W. Stauf, Wehrrecht Vol. I, see supra n. 79, Wehrdisziplinarordnung, Sect. 16 No. 2.

278

Section 16 (1) WDO.

279

BVerwG, Judgement of 16 July 1981 - 2 W D 30/81.

280

Sect. 51 of the General Criminal Code.

281

See G. Nolte, Article 103 GG, in: v. Mangoldt/Klein/Starck (ed.), Grundgesetz Kommentar Vol. 3, No. 213; BVerfGE 21, 378 (384). 282

Sect. 16 (3) WDO.

283

BVerfG, (1967) Neue Juristische Wochenschrift 1651.

284

Sect. 22 WDO.

Military Law in Germany

409

the troops), 285 disciplinary fine, confinement to barracks, and disciplinary arrest with the consent of a judge of an Administrative Military Court. Other forms of warning are not considered to be disciplinary measures; however, they can also be challenged before a court. 286 A disciplinary fine may not exceed a soldier's monthly salary.287 In cases of confinement to barracks, the soldier is not allowed to leave the barracks without permission. In severe cases, the soldier may be forbidden to go to common rooms or to have visitors. Confinement to barracks may last between 3 days and three weeks.288 The same period can be imposed in cases of arrest, which is a simple form of detention. 289 Section 58 W D O lists the sanctions which can be imposed only by an administrative military court: reduction of pay; prohibition on promoting the soldier, degradation, dismissal, reduction of pension rights, and deprivation of pension rights. These disciplinary measures are applicable only to career soldiers and not to conscripts. 290 Officers may be subject only to degradation to the lowest rank of their category. NCOs can be degraded to the rank of Sergeant (Feldwebel). In other cases there are no limits.291 Administrative military courts may also inflict minor sanctions. 292 e. The Disciplinary Procedure and Legal Remedies The disciplinary procedure depends on the kind of disciplinary sanction contemplated. aa. Procedure for Minor Sanctions The following procedure applies in case of minor sanctions (Sections 32-41 WDO): (1) If the superior becomes aware of facts which suggest that a soldier has committed an offence, the superior must start an objective examination of the case, i.e. he must look for evidence both against and in favour of the

285

Sect. 23 WDO.

286

BVerwG, (1977) Neue Zeitschrift für Wehrrecht 143.

287

Sect. 24 WDO.

288

Sect. 25 WDO.

289

Sect. 26 WDO.

290

W. Stauf, Wehrrecht Vol. I, see supra η. 79, Wehrdisziplinarordnung, Sect. 58 No. 2.

291

Sect. 62 (1) WDO.

292

Sect. 58 (6) WDO.

410

Georg Nolte and Heike Krieger

soldier.293 He can also delegate the investigations to an officer.294 If opening disciplinary proceedings before the Administrative Military Court seems appropriate, the competent disciplinary superior addresses the so-called Einleitungsbehörde - an authority competent to open the disciplinary proceedings.295 The Einleitungsbehörde will apply to the Administrative Military Court. (2) The soldier must be informed about the charges laid against him as soon as this is possible without endangering the investigations. After having been informed about the charge and the right to refuse to testify, the soldier will be interrogated.296 The soldier may not appoint a defence counsel for the disciplinary proceedings. Although a chamber of the Constitutional Court has stated that this rule is in conformity with the Constitution,297 scholarly literature constantly criticises the lack of a defence counsel as an infringement on the rule of law and on fundamental rights.298 Yet, according to Section 4 WDO and Section 27 SBG, the spokesman must be heard before a disciplinary measure can be imposed. The soldier can oppose the participation of the spokesman. (3) If an offence has been committed, the superior must decide whether to take disciplinary or general educational measures. Disciplinary measures shall be applied only if all other means have been exhausted.299 The competent superior officer alone decides if and how disciplinary measures shall be imposed. The use of disciplinary measures cannot be ordered by any other superior.300 This independence of the disciplinary superior stems from military tradition. (4) The disciplinary measure shall be imposed only after at least one night has passed since the soldier was interrogated.301 (5) When imposing the disciplinary measure, the disciplinary superior must take into account the characteristics and severity of the infringement, its effects, 293

See D. Peterson, Die Ermittlungspflicht des Disziplinarvorgesetzten gem. § 28 Abs. 1 Wehrdisziplinarordnung, (1989) Neue Zeitschrift für Wehrrecht 54 et seqq. 294

Sect. 32 ( l ) - ( 3 ) WDO.

295

Sect. 33 (1) and 41 WDO.

296

Sect. 32 (4) WDO.

297

BVerfG, Decision of 12 May 1977 - 2 BvR 188/77; see also BVerwG, (1977) Neue Zeitschrift für Wehrrecht 21; see also K. Dau, Wehrdisziplinarordnung (3 ed., Munich, 1998), Sect. 28 No. 13. 298 W. Stauf, Wehrrecht Vol. II, see supra η. 202, Wehrdisziplinarordnung, Sect. 32 No. 4; T. TetzlafF, Das Soldatenrecht der Bundesrepublik Deutschland im Lichte neuerer Grundrechtsfunktionen (Baden-Baden 2000), pp. 175-179. 299

Sect. 33 (1) and (2) WDO.

300

Sect. 35 WDO.

301

Sect. 37 (1) WDO.

Military Law in Germany

411

the severity of the committed wrong, the personality of the soldier, his personal attitude, and his motives. 302 If a disciplinary arrest is to be imposed, a judge of the competent Administrative Military Court must agree to this measure. 303 (6) According to Section 42 W D O , the soldier may raise a complaint against disciplinary measures which were imposed by a military superior. The complaint against disciplinary measures suspends the imposition of the measures. The Law on Complaints of Soldiers (WBO) applies with certain modifications. The next disciplinary superior is competent to decide on the complaint and the Administrative Military Court decides on the further complaint. There is a prohibition on reformatio in peius, i.e. no measure stricter than the original one may be imposed.

bb. The Structure of Courts for Military Law ( Wehrdienstgerichte ) Disciplinary sanctions may also be imposed by Courts for Military Law (Wehrdienstgerichte) (Sections 68-81 WDO): (1) There are two kinds of Courts for Military Law competent for a) disciplinary proceedings against soldiers and b) complaints raised by soldiers. These courts are: Administrative Military Courts (Truppendienstgerichte) and the Chambers for Military Law of the Federal Administrative Court ( Wehrdienstsenate beim Bundesverwaltungsgericht).304 (2) The Administrative Military Courts are established by the Ministry of Defence. Presently, there are two such courts. 305 Administrative Military Courts are competent as courts of first instance for disciplinary affairs. The court is composed of several chambers. 306 A chamber consists of one professional judge as president and two honorary judges. 307 In severe cases, there will be two additional professional judges in a chamber. 308 The honorary judges are either current or former servicemembers. The Court chooses these judges by drawing lots from a group of persons nominated by the armed forces. 309 One of the honorary judges must belong to the same category as the soldier accused. The

302 303 304 305 306 307 308 309

Sect. 38 (1) WDO. Sect. 40 WDO. Sect. 68 WDO. Truppendienstgericht Nord in Münster; Truppendienstgericht Süd in Ulm. Sect. 69 WDO. Sect. 75 WDO. Sect. 76 WDO. Sect. 74, 71 (2) WDO.

412

Georg Nolte and Heike Krieger

other honorary judge must be an officer of higher rank than the soldier accused. In proceedings against officers from the rank of colonel and above, one of the honorary judges must be a general. 310 (3) The Military Law Chambers of the Federal Administrative Court are composed of three professional judges and two honorary judges who are chosen by the same procedure as the honorary judges in the Administrative Military Courts. 311 The Military Law Chambers are competent in cases of appeal against a decision of the Administrative Military Court in disciplinary affairs as well as in cases of general complaints. 312 They are also competent as courts of first instance in administrative matters, if the soldier is complaining about decisions of the Ministry of Defence. 313 cc. Procedure for Sanctions Imposed by Administrative Military

Courts

The procedure in the Administrative Military Court is comparable to the criminal procedure in criminal courts. To fill in possible lacunae, the general Law on Criminal Procedure (Strafprozeßordnung) as well as the general Law on Court Procedure (Gerichtsverfassungsgesetz) apply. The difference to ordinary criminal law proceedings becomes visible, inter alia, by the fact that a soldier may not be arrested as a measure during the proceedings. 314 The procedure includes the following basic steps (Sections 82-113 WDO): (1) To prepare its decision, the authority competent to open the proceedings can ask the Military Disciplinary Counsel ( Wehrdisziplinaranwalt) to start preliminary investigations. 315 (2) The competent office of the armed forces opens the proceedings by written order (Section 93 W D O , Einleitungsverfahren). The authority which is competent to open court proceedings (Einleitungsbehörde) depends, in principle, on the rank of the soldier accused. If officers of the rank of colonel or above are concerned, the Ministry of Defence is competent. In all other cases, the commander of the division or a superior in a comparable position will exercise

310

Sect. 75 (2) WDO. Sect. 80 WDO. 312 Sect. 114 WDO. 313 Sect. 21, 22 WBO. 314 Sect. 87 WDO. 315 Sect. 92 WDO; see H.G. Bachmann, Die Vorermittlung des Wehrdisziplinaranwaltes und die Entschließung der Ermittlungsbehörde nach § 92 WDO, (2002) Neue Zeitschrift 311

für Wehrrecht 58 et seqq.

Military Law in Germany

413

these functions. 316 A soldier who is suspected of having committed a disciplinary wrong may request the Einleitungsbehörde to start disciplinary proceedings before a Court in order to free himself from any suspicion. 317 (3) The Military Disciplinary Counsel (Wehrdisziplinaranwalt) conducts investigations (Section 97 WDO). (4) The soldier must be heard before proceedings against him may commence, and he must be notified of the opening of such proceedings. He must then be heard at a time when this is possible without endangering the investigations. He must be informed before the interrogation about the charges laid against him, and he must be informed about the right to refuse to testify. The soldier may consult a defence counsel who may also participate in the final interrogation. 318 (5) When the investigations are concluded, the proceedings are discontinued if the commission of an offence has not been sufficiently substantiated, 319 or, if it has, the Military Disciplinary Counsel files a formal accusation (Anschuldigung, Section 99 W D O ) . The soldier is notified of the accusation by the Administrative Military Court. 320 (6) The proceedings can end with a simple decision if the only disciplinary measure to be imposed is a prohibition on promoting the accused, if the soldier is acquitted, or if the proceedings are otherwise discontinued. 321 (7) The next step of the proceedings is the trial (Hauptverhandlung, Section 104 WDO). In contrast to ordinary criminal trials, the hearing is not usually open to the public. However, the soldier may request a public trial (Section 105 WDO). The disciplinary superior as well as the Ombudsperson may follow the proceedings. A defence counsel can be chosen by the soldier. If he does not choose a defence counsel one must be appointed by the court. During the trial, evidence is taken. At the end of the trial, the court will make a decision consisting either of a disciplinary sanction or an acquittal. The court may also discontinue the proceedings under certain conditions (Section 108 Law on Military Discipline). (8) Both the soldier and the Military Disciplinary Counsel may file an appeal against the court's decision to the Military Chamber of the Federal Administrative Court (Section 115 WDO). 3 2 2 316 317 318 319 320 321 322

Sect. 94 WDO. Sect. 95 WDO. Sect. 97 WDO. Sect. 98 WDO. Sect. 100 WDO. Sect. 102 WDO. W. Stauf, Wehrrecht Vol. II, see supra n. 202, Wehrdisziplinarordnung, Sect. 115 No. 3.

414

Georg Nolte and Heike Krieger

f . Representation of the Armed Forces during Disciplinary Proceedings There are special lawyers (Military Disciplinary Counsel: Wehrdisziplinaranwalt) at Administrative Military Courts, who represent the armed forces (Einleitungsbehörde) during disciplinary proceedings before the Court (Section 78 WDO). These lawyers are appointed by the Ministry of Defence. Their functions are laid down in the Law on Military Discipline (WDO). These are equivalent to the prosecutor's functions during criminal proceedings: they lead objective investigations, i.e. searching for evidence both against and in favour of the soldier (Section 92 (1), 97 (1) WDO). During the investigation, the Military Disciplinary Counsel is obliged to give the soldier a hearing. After the investigations are concluded, the Counsel writes a formal accusation {Anschuldigungsschrift),323 He is also entitled to file an appeal. In addition, he is responsible for the execution of disciplinary measures imposed by the court. 324 The Military Disciplinary Counsel is a civil servant who acts as a legal advisor of the armed forces.325 There is no hierarchical order among the Military Disciplinary Counsels, who are all subject to the Main Disciplinary Counsel of the Armed Forces (Bundeswehrdisziplinaranwalt). The Main Disciplinary Counsel works at the Federal Administrative Court. The Disciplinary Counsel is bound by the instructions of the Ministry of Defence. He is only a representative of the Ministry of Defence and not an independent institution of the judicial procedure. 326 Therefore, he may not entertain an opinion or attitude on disciplinary matters different from those of the Minister of Defence, who holds the supreme command power.327

g. Measures of Commendation Measures of commendation are part of the Law on Military Discipline. According to Section 3 WDO, the following two measures of commendation exist: commendation in the order of the day, and commendation in the official gazette of the Ministry of Defence. In case of a formal commendation, the sol-

323

Sect. 99(1) WDO.

324

Sect. 81 (2) WDO.

325

See E. Laabs, Rechtsstellung und Pflichtenkreis der Rechtsberater der Bundeswehr bei Auslandseinsätzen und im Verteidigungsfall, (1995) Neue Zeitschrift für Wehrrecht 1 et seqq. and 61 et seqq. 326

See P. Wolf, Die erweiterten Zuständigkeiten der Wehrdisziplinaranwaltschaften in den §§ 92 Abs. 1 Satz 2, 81 Abs. 4 Wehrdisziplinarordnung n.F., (2001) Neue Zeitschrift für Wehrrecht 200, 213. 327

W. Stauf, Wehrrecht Vol. II, see supra η. 202, Wehrdisziplinarordnung, Sect. 81 No. 5.

Military Law in Germany

415

dier can receive extra leave. A measure of commendation is used if a soldier has fulfilled his duties in an exemplary manner. The company commander as well as the Minister of Defence are competent to make formal commendations (Section 4 WDO). Since World War II, Germany has abandoned the practice of giving military medals, but military badges of honour (militärische Ehrenzeichen) may be bestowed on soldiers.328

2. Criminal Law a. Military Criminal Legislation and its Applicability The Military Criminal Code dates from 1957 (WStG).329 This law provides for special crimes pertinent to the military service, such as crimes against the duty to serve, crimes against the duties of lower ranks and superior ranks, and crimes against military duties in general. These include, for instance, desertion, disobedience, and mutiny. Crimes under general criminal law, such as murder, are not specially dealt with in the Military Criminal Code According to Section 1 WStG, the law is applicable only to soldiers actively serving in the German armed forces and those acting as military superiors. For civilians acting as military superiors (i.e. the Minister of Defence and his undersecretaries representing him), the WStG applies only in relation to crimes against the duties of a superior. In case of a State of Defence it would also apply to the German Chancellor.330 Other civilians could act as military superiors if an administrative order authorised them to do so. However, such an order has never been enacted.331 If civilians participate in a military crime, the WStG also applies to them. The WStG extends to soldiers who are not in active service only insofar as they violate provisions on secrecy. The restrictive applicability of the Military Criminal Code is a response to the abusive manner in which military criminal law was used during the Second World War in Germany {Sonderstrafrech i) ,332 The Military Criminal Code applies to acts which a soldier commits abroad irrespective of the law applicable in the country in which the crime occurred (Section 1 a WStG). In addition, Section 1 a WStG extends the applicability of 328

Erlaß über die Stiftung des Ehrenzeichens der Bundeswehr of 6 November 1980, Ministerialblatt des Bundesministeriums der Verteidigung 1981, p. 74. 329

Wehrstrafgesetz of 24 May 1974, Bundesgesetzblatt Vol. I, p. 1213.

330

J. Schölz/E. Lingens, Wehrstrafgesetzbuch (4. ed., Munich, 2000), Sect. 1 No. 24.

331

W. Stauf, Wehrrecht Vol. II, see supra η. 202, Wehrstrafgesetz, Sect. 1 No. 27.

332

J. Schölz/E. Lingens, Wehrstrafgesetzbuch, see supra n. 330, Sect. 1 No. 1.

416

Georg Nolte and Heike Krieger

the General Criminal Code to acts committed by soldiers while serving abroad or in relation to their service abroad. A soldier committing a crime against allied forces will also be sentenced under the Military Criminal Code. 333 b. Relationship to General Criminal Law According to Section 3 WStG, general criminal law applies except for cases which are explicitly regulated by the Military Criminal Code for Soldiers. This law is lex specialis to the General Criminal Code. Both laws are applicable to soldiers. If the soldier commits an act prohibited by general criminal law, such as murder, he will be sentenced on the basis of the General Criminal Code. c. Military Criminal Courts According to Article 96 (2) of the Constitution, the federal level may establish special military criminal courts. So far, however, the Federation has not made use of this competence and it is not required to make use of it. 334 According to this provision such courts would be competent only during a the State of Defence, or for soldiers abroad or on warships. Thus, it is not constitutionally permitted to establish special military criminal courts in peace-time for crimes committed on G e r m a n territory. The special military criminal courts would not be competent to judge civilians. 335 On the other hand, their competence would not be restricted to crimes committed during service.336 The Constitution also provides that professional judges on the bench must be jurists. The courts would be subject to review by the Federal Appeal Court. 337 The restrictive approach to Military Criminal Courts is based on the G e r m a n experience of World War II. d. Special Rules with Regard to the Legal Procedure and the Sanctions

System

Since there are no special military criminal courts, the general criminal procedure applies in proceedings in which the Military Criminal Code is applied. 333

Sect. 4 WStG. R. Herzog, Art. 96 GG, (Munich, 1973), No. 19. 335 R. Herzog, Art. 96 GG, (Munich, 1973), No. 16. 336 R. Herzog, Art. 96 GG, (Munich, 1973), No. 18. 337 R. Herzog, Art. 96 GG, (Munich, 1973), No. 24. 334

in T. Maunz/G. Düng/R. Herzog, Grundgesetz-Kommentar in T. Maunz/G. Düng/R. Herzog, Grundgesetz-Kommentar in T. Maunz/G. Düng/R. Herzog, Grundgesetz-Kommentar in T. Maunz/G. Dürig/R. Herzog, Grundgesetz-Kommentar

Military Law in Germany

417

However, the Military Criminal Code includes some special provisions concerning the sanctions system (Sections 9-14 a WStG). According to Section 9 WStG, penal arrest is a sanction applicable only to soldiers. It is restricted to a maximum period of six months, during which the soldier shall serve in the army and receive further education. It is considered to be a milder form of detention which takes into account that there are more duties imposed on soldiers than on normal citizens. The special status of soldiers justifies the different treatment. In practice, other forms of detention are rarely used for soldiers. As a result of the démocratisation of the armed forces there is no differentiation in the form of arrest according to the soldier's rank. However, penal arrest is a real criminal sanction and must not be confused with disciplinary arrest.339 The implementation of arrest is regulated by the Ordinance on the Execution of Sanctions.340 The arrest is implemented at a normal military base, and normally the soldier participates in daily duties during the arrest, with the exception of guard or other security duties. Therefore, he is in strict detention only in his leisure time. General restrictions connected with a detention are regulated in detail. For instance, the use of personal items is restricted and visitors are allowed only once a week. Mail (except for parcels) is not controlled. Apart from detention, fines may be imposed by the court. However, fines are permissible only if military discipline does not require a detention (Section 10 WStG), whereas in general criminal law fines are to be used as a first choice (if possible). The provision is justified by the requirements of military service.341 It applies to both military criminal offences and general criminal offences of soldiers.342 The previous version of the Military Criminal Code did not provide for fines as sanctions for crimes committed by soldiers, since, in the past, soldiers did not earn high wages. The change to permit fines allows the Military Criminal Code to conform with the aim of general criminal law to reduce the number of short detentions by imposing a fine instead.343 e. Justification

by Superior

Orders

Justification by superior orders is regulated by criminal as well as by disciplinary law. According to Section 5 WStG, a subordinate who commits a crime pursuant to a superior order will be responsible for his deed only if he knew 338

J. Schölz/E. Lingens, Wehrstrafgesetzbuch, see supra n. 330, Sect. 9 No. 3.

339

J. Schölz/E. Lingens, Wehrstrafgesetzbuch, see supra n. 330, Sect. 9 No. 5.

340

Bundeswehrvollzugsordnung of 29 November 1972, Bundesgesetzblatt Vol I, p. 2205.

341

BVerfG, (1973) Neue Juristische Wochenschrift 797.

342

J. Schölz/E. Lingens, Wehrstrafgesetzbuch, see supra η. 330, Sect. 10 No. 1.

343

J. Schölz/E. Lingens, Wehrstrafgesetzbuch, see supra n. 330, Sect. 10 No. 2.

418

Georg Nolte and Heike Krieger

that the deed was illegal or if this should have been obvious given the circumstances known to him. The provision is phrased according to Section 11 (2) SG.344 Section 5 WStG serves as a lawful excuse for a crime. The new so-called International Criminal Code ( Völkerstrafgesetzbuch) includes a rule on justification by superior orders. According to Section 3, a crime against provisions of this code is excused if a) the soldier acts pursuant to a military order, b) he did not know that the order was illegal, and c) the order was not manifestly illegal. Section 3 reflects the terminology of Article 33 of the Statute of the International Criminal Court. In addition, Section 22 (1) WStG deals with the criminal aspects of disobedience. In accordance with Section 11 (1) SG, a soldier does not act contrary to criminal law if he disobeys an order that contradicts human dignity or has not been given for military purposes, or if obedience would lead to a criminal offence. /

Sanctions for Non-Compliance with International Humanitarian Law and Ratification of the Rome Statute of the International Criminal Court

Until 2001, only some violations of international law were explicitly prohibited by general criminal law, e.g. genocide (General Criminal Code: Section 220a StGB). With regard to other obligations of international humanitarian law, it was held that the general prohibitions on murder, etc. would also encompass violations of international humanitarian law by soldiers. Therefore, a more explicit introduction of international crimes into the national legal order was not considered necessary. However, since the wrongfulness of certain crimes in peace-time and a violation of international humanitarian law in war-time are different in many respects, a so-called International Criminal Code ( Völkerstrafgesetzbuch) was enacted in 2001.345 The law is applicable to all crimes against public international law, even if the deed was committed abroad and even if there is no special relation to Germany. Thus, the principle of universal jurisdiction applies. If there are no specific rules contained in the International Criminal Code, the general criminal law is applicable. Crimes under this code are not subject to a statute of limitations. The International Criminal Code enumerates the following crimes: genocide, crimes against humanity, crimes against the laws of war concerning people, property, humanitarian operations and symbols, and crimes concerning the use of prohibited methods or means of

344 345

See above V.3.

Bundesgesetzblatt Vol. I, p. 2254; see G. Werle/F. Jeßberger, Das Völkerstrafgesetzbuch, 57 (2002) Juristen Zeitung 725-734.

Military Law in Germany

419

warfare. In addition, the International Criminal Code allows the punishment of a military superior who fails to prevent a subordinate from committing such a crime. The same is applicable to civilian superiors. It is also a criminal offence if a military or civilian superior does not notify the competent authorities immediately of a crime punishable by this code. Germany has ratified the Rome Statute of the International Criminal Court in 2000.

VIII. Regulations Governing Guard Duties 1. Powers of Guards towards Military Personnel as well as towards Civilians Competences of guards towards military personnel as well as towards civilians are regulated in the Law on Guard Duties.346 In order to guarantee a comprehensive and conclusive application of this law, the Ministry of Defence has enacted a service regulation on guard duties.347 In addition, there is a service regulation on planning, organising, and exercising guard functions.348 The Law on Guard duties applies to military installations and ships of the Bundeswehr and of its allied forces within the Federal Republic of Germany (Section 2 (1)). Since there is no explicit provision on the territorial applicability of the Law on Guard Duties, it can be applied wherever German authority is exercised. Apart from the German territory, this would be, above all, the territory of NATO Member States on the basis of and under the restrictions of Article VII (10) (a) of the NATO Status-of-Forces-Agreement.349 According to Section 1 of the Law on Guard Duties, three groups of persons are entitled to carry out guard duties: 1. soldiers of the Bundeswehr, 2. soldiers of allied forces, and 3. civilian guards. Soldiers of the Bundeswehr who have been charged with guard duties are entitled to stop, to check the identification of, to search, and to make a preliminary arrest of persons, as well as to secure or to seize objects, and to exercise force against persons and objects. According to Section 1 (2) of the Law on Guard Duties, soldiers of allied forces 346

Gesetz über die Anwendung unmittelbaren Zwangs und die Ausübung besonderer Befugnisse durch Soldaten der Bundeswehr und verbündeter Streitkräfte sowie zivile Wachpersonen of 12 August 1965, Bundesgesetzblatt Vol. I, p. 796; see for new proposals: J. Heinen, Gedanken zur Novellierung des UzwGBw, (2002) Neue Zeitschrift für Wehrrecht 177 et seqq. 347

Part B, Zentrale Dienstvorschift ZDv 14/9 of 21 January 1981.

348

Zentrale Dienstvorschift ZDv 10/6 VS-NfD - Der Wachdienst in der Bundeswehr.

349 W. Stauf, Wehrrecht Vol. II, see supra η. 202, Unmittelbares Zwangsgesetz Bundeswehr, Introduction No. 8.

Georg Nolte and Heike Krieger

420

may be charged with guard duties. They are under the command of a superior who is authorised by and directly responsible to the German Minister of Defence. Civilian guards also enjoy authority under the Law on Guard Duties, insofar as they have been empowered by the Minister of Defence. Civilian guards must fulfil certain conditions: they must be personally reliable and physically able, have been educated for guard purposes, and have good knowledge of the competences of the law. They should be between 20 and 65 years old. The guards' competences are regulated in detail in Sections 4-18 of the Law on Guard Duties. In order to check a person's identification and entitlement to be present in a military installation, guards are competent to stop and check anyone who enters or is present in a military installation.350 If such a person cannot immediately be identified, or if there is a concrete suspicion that such a person has committed a crime against the armed forces, the person can be brought to the guard's superior in order to be investigated further. If the conditions for arrest are not met, the person must be released immediately.351 The conditions for arrest are comparable to those established in the general Code on Penal Procedure:352 either there must be imminent danger, or the conditions for a preliminary detention according to general penal procedure must be fulfilled. According to Section 112 of the Code on Penal Procedure, the person must be "most probably responsible" for the deed. It must be probable that the person would escape, influence witnesses, or manipulate evidence. The person must be immediately handed over to the police. In case of imminent danger and if there is a suspicion that they have committed a crime against the armed forces, anyone subject to an identity check may also be searched. The purpose of the search must be to find evidence of a crime. Objects can be secured or temporarily seized if they seem to be connected to the suspected crime. These objects must be handed over to the police within three days.353 The Ministry of Defence can order that all persons who want to enter specific military security areas may be searched for reasons of military security.354 Finally, there is the competence to use force (unmittelbaren Zwang).355 Force may be used only if it is necessary according to the circumstances and in order to prevent the commission or continuation of a crime, in order to eliminate disturbances that endanger the functioning and security of the troops, or in order to enforce a measure which is

350 351 352 353 354 355

Sect. Sect. Sect. Sect. Sect. Sect.

4 Law on Guard 5 Law on Guard 6 Law on Guard 7 Law on Guard 8 Law on Guard 9 Law on Guard

Duties. Duties. Duties. Duties. Duties. Duties.

Military Law in Germany

421

permissible according to the Law on Guard Duties or according to the general power to arrest persons. The conditions for the use of force are regulated in detail (Sections 10-18 Law on Guard Duties). The regulations are comparable to those regulations contained in the general laws on the police. Persons must be warned about the imminent use of force, except in cases in which the situation does not permit prior warning.356 The use of force is limited by the principle of proportionality.357 Wounded persons must receive immediate medical treatment.358 Persons checked according to Section 5 may be handcuffed if there is a danger that they will attack other people or resist further measures, that they will try to flee, or if there is a danger that they will commit suicide.359

2. Performance of Guard Duties by Soldiers of Foreign Armed Forces The Law on Guard Duties was amended to include a new Section 1 (2). This new subparagraph 2 allows that soldiers of forces from other countries may, under certain conditions, exercise the special powers of a guard as provided for in this law. When exercising guard duties, the foreign soldiers are under German command and exercise German authority. For the time of their guard duties the soldiers from foreign forces who exercise German guard duties are exclusively under the command of German superiors. For this purpose they are - for a limited time and function - removed from their national command structures, except with regard to disciplinary matters.360 This provision was introduced by the Law Concerning the Treaty on the German Netherlands Military Co-operation of 11 September 1998.361 Article 10 of the Treaty provides for bi-national guards. Bi-nationally used facilities or premises may be guarded by bi-national guards, if the guard personnel of the sending State is vested with the same competences as guard personnel of the receiving State. Bi-national guards are exclusively subordinated to the competent superior guard authorities of the receiving State for the execution of their guard duties. It is doubtful whether Section 1 (2) of the Law on Guard Duties implies a transfer of sovereignty from a foreign country to Germany. Although there is a possibility to revoke the subordination of the soldier who is subject to a foreign 356

Sect. 11 Law on Guard Duties.

357

Sect. 12 Law on Guard Duties.

358

Sect. 13 Law on Guard Duties.

359

Sect. 14 Law on Guard Duties.

360

Memorandum to the Corps Agreement, Bundestags-Drucksache 13/10117, p. 7.

361

Bundesgesetzblatt 1998 Vol. II, p. 2405.

422

Georg Nolte and Heike Krieger

commander, doubts may result from the fact that the soldier is under the exclusive command of a foreign commander during the guard service. Awareness of these doubts seems to have led to delays in the legislative procedure for the corresponding Dutch law. From the German point of view it is of paramount importance that a Dutch soldier on guard in Germany exercises German governmental authority towards German citizens.

3. The Rules Concerning the Carrying and the Use of Arms and Other Military Equipment The rules on the use of weapons are contained in the regulations on the use of force in the Law on Guard Duties, especially in Sections 10 and 15-18, as well as in the service regulation ZDv 14/9 on Guard Duties. The regulations are detailed illustrations of the conditions required by the principle of proportionality. According to Section 10 (4), all stubbing and shooting weapons (Hieb- und Schußwaffen), chemical irritants, and explosives which are permitted in service are considered to be weapons. According to Section 15, weapons may be used only if this is necessary according to the circumstances and: -

-

if they are used in order to prevent a crime that is about to be committed or which is in progress, if this crime is especially grave or is being committed with weapons or explosives, if a member of the armed forces, of the civilian guards, or of allied forces is physically attacked while on duty or while present in a military installation, if a military means or installation is illegally destroyed, damaged, changed, or made useless, and if thereby the security of the Federal Republic of Germany or an allied country or the functioning of the German or allied troops is endangered, or if human lives are threatened, if persons try to flee because they are about to be checked, because they have been encountered while committing a crime, or in an attempt to escape from the detention of the armed forces. If a person tries to flee, the guards must have ordered the person to stop several times before they are allowed to use weapons.

Weapons may be used against a group of persons only if this group commits crimes against the armed forces by the use of force and if the use of weapons or of comparable measures against individual persons is not successful.362 The use

362

Sect. 15 (2) Law on Guard Duties.

Military Law in Germany

423

of weapons is also subject to the condition that all other means of force have been used without success, or obviously will not be successful. Weapons may be used against persons only if the use against objects is or obviously will not be successful. Weapons may be used only to render persons incapable of attacking or escaping. They must not be used if the life of uninvolved persons is very likely to be endangered, except for cases in which the use of weapons against a group is absolutely necessary. Weapons must not be used against persons who appear to be children.363 Persons must be warned that weapons will be used: this can be done by shouting or by shooting in the air. In exceptional cases, they may be used without warning if the life of a person is immediately endangered or if a particularly severe danger to the military installation must be prevented.364 These regulations also apply to the use of explosives.365 Soldiers using weapons in an illegal way are punished according to Section 46 of the Military Criminal Code.

IX. Legal Reforms with Respect to Multinational Operations and Structures 1. Pertinent Legislation aa. Law Regulating Guard Duties When the German Parliament passed the Law on the German-Netherlands Military Cooperation (Gesetz zu dem Vertragswerk über die deutsch-niederländische militärische Zusammenarbeit, Bundesgesetzblatt 1998 Vol. II p. 2405) in order to ratify the Convention on the 1 (German/Netherlands) Corps, Parliament at the same time amended the general legislation on the use of force by military and civil guards (Gesetz über die Anwendung unmittelbaren Zwanges und die Ausübung besonderer Befugnisse durch Soldaten der Bundeswehr und zivile Wachpersonen - Law Regulating Guard Duties). It should be noted that this amendment did not only concern the guards of the 1 (German/Netherlands) Corps, but guards in multinational units in general. The amendment added a new Section 1 (2) to the Law Regulating Guard Duties. This new provision allows not only German soldiers, but also soldiers of foreign nations to exercise guard duties on German territory. While exercising military guard duties, the foreign soldiers are under the immediate command of a German guard superior who is appointed by and responsible to the 363 364 365

Sect. 16 Law on Guard Duties. Sect. 17 Law on Guard Duties. Sect. 18 Law on Guard Duties.

424

Georg Nolte and Heike Krieger

German Minister of Defence. Under these preconditions, the foreign guard soldiers have the same rights and duties vis-à-vis members of the public as German soldiers exercising guard duties. bb. Bi-nationallMultinational Agreements Germany has concluded several international agreements on the establishment of bi- and multinational military units (see chapter by Maxim Kleine in this book). Some of these agreements have been ratified by the German Parliament.

2. Probability of Future Reforms An agreement for Eurocorps is in preparation. It will require ratification by Parliament.

3. Academic Discussion The academic discussion on the legal issues of multinational units in Germany focuses on the constitutional requirements for different models of command power. It is debated to what extent the power to command soldiers can be transferred to soldiers of foreign forces without violating the provision of Article 24 of the German Constitution (for a more detailed description of the discussion see above VI. 2.).

X. Select Bibliography I. Pertinent Legislation Gesetz über die Anwendung unmittelbaren Zwanges und die Ausübung besonderer Befugnisse durch Soldaten der Bundeswehr und verbündeter Streitkräfte sowie zivile Wachpersonen (UzwGBw) vom 12.8.1965, zuletzt geändert durch Art. 2 des Gesetzes zum Vertragswerk über die deutsch-niederländische militärische Zusammenarbeit vom II.9.1998, BGBl. Vol. II, p. 2405 Gesetz über die Geld- und Sachbezüge der Soldaten, die auf Grund der Wehrpflicht Wehrdienst leisten (Wehrsoldgesetz) in der Fassung der Bekanntmachung vom 10.5. 2000, BGBl. Vol. I, p. 694 Gesetz über die Rechtstellung der Soldaten (Soldatengesetz) in der Fassung vom 14.2.2001, zuletzt geändert durch Drittes Gesetz zur Änderung verwaltungsverfahrensrechtlicher Vorschriften vom 21.8.2002, BGBl. Vol. I, p. 231

Military Law in Germany

425

Gesetz über den Wehrbeauftragten des Deutschen Bundestages (Gesetz zu Art. 45 b des Grundgesetzes - WBeauftrG) vom 16.6.1982, BGBl. Vol. I, p. 677, zuletzt geändert durch Gesetz zur Änderung des Gesetzes über den Wehrbeauftragten des Deutschen Bundestages vom 30.3.1990, BGBl. Vol. I, p. 599 Gesetz über den Zivildienst von Kriegsdienstverweigerern in der Fassung der Bekanntmachung vom 28.9.1994, BGBl. Vol. I, p. 2811, zuletzt geändert durch Art. 67 des Gesetzes vom 21.8.2002, BGBl. Vol. I, p. 3322 Soldatenbeteiligungsgesetz in der Fassung vom 15.4.1997, BGBl. Vol. I, p. 766 Wehrbeschwerdeordnung in der Fassung der Bekanntmachung vom 11.9.1972, BGBl. 1972 Vol. I, p. 1737, berichtigt BGBl. Vol. I, p. 1906, zuletzt geändert durch das Zweite Gesetz zur Neuordnung des Wehrdisziplinarrechts und zur Änderung anderer Vorschriften, BGBl. 2001 Vol. I, p. 2093 Wehrdisziplinarordnung in der Fassung vom 16.8.2001, BGBl. Vol. I, p. 2093 Wehrpflichtgesetz in der Fassung vom 20.2.2002, BGBl. Vol. I, p. 954 Wehrstrafgesetz in der Fassung vom 24.5.1974, BGBl. 1974 Vol. I, p. 164, zuletzt geändert durch Bundeswehrneuausrichtungsgesetz vom 20.12.2001, BGBl. 2001 Vol. I, p. 4013 Verordnung über die Regelung des militärischen Vorgesetztenverhältnisses (Vorgesetztenverordnung) vom 4.6.1956, BGBl. 1956 Vol. I, p. 459, zuletzt geändert am 7.10.1981, BGBl. 1981 Vol. I,p. 1129 Verordnung über die Laufbahn der Soldaten (Soldatenlaufbahnverordnung) in der Fassung vom 19.3.2002, BGBl. I, p. 1111 Verordnung über den Urlaub der Soldaten (Soldatenurlaubsverordnung) in der Fassung der Bekanntmachung vom 14.5.1997, BGBl. Vol. I, p. 1134 Verordnung über die Vergütung für Soldaten mit besonderer zeitlicher Belastung vom 2.6.1989, BGBL. Vol. I, p. 1075, zuletzt geändert durch Art. 13 der Verordnung vom 8.8.2002

2. Books and Articles a.

Books

H. V. Böttcher/K. Dau, Wehrbeschwerdeordnung: Kommentar (4. edn, Munich, 1997). Κ. Dau, Wehrdisziplinarordnung·. Kommentar (4. edn, Munich, 2002). W. Fürst/H. Arndt, Soldatenrecht·. Kommentar des Soldatengesetzes (Berlin, 1992). A. Gronimus, Die Beteiligungsrechte der Vertrauenspersonen der Bundeswehr: Erläuterungen zum Soldatenbeteiligungsgesetz (4. edn, Regensburg, 2000). W. Scherer/R. Alf, Soldatengesetz: Kommentar (7. edn, Munich, 2003). J. Schölz/E. Lingens, Wehrstrafgesetz (4. edn, Munich, 2000). W. Stauf, Wehrrecht: Kommentar zum Deutschen Bundesrecht, Vols. 1-3 (Baden-Baden, 2002).

426

Georg Nolte and Heike Krieger

T. Tetzlaff, Das Soldatenrecht

der Bundesrepublik

Deutschland

im Lichte neuerer Grund-

rechtsfunktionen: Zur aktuellen Grundrechtslage der Soldaten in Deutschland und ausgewählten NATO-Staaten (Baden-Baden, 2000). b. Collections and

Textbooks

Wehrpflicht- und Soldatenrecht: Textausgabe (29 edn, Munich, 2002). H.-G. Schwenck/R. Weidinger, Handbuch des Wehrrechts: Vollständige Sammlung aller Gesetze, Verordnungen und Erlasse auf dem Gebiet der Verteidigung mit Erläuterungen, Hinweisen und Übersichten (Köln, 2002). c.

Articles

Most articles on military law and relevant military case law are published in: Neue Zeitschrift für Wehrrecht (NZWehrr) (Neuwied, 1959 et seqq.); an overwiew of articles published in this journal is available in the internet: http://www.deutsches-wehrrecht.de/ NZWehrr.htm. An overwiew on literature on military law is provided by: C. Raap/A. Poretschkin, "Literatur- Deutsches Wehrrecht" 21 (2002) Neue Zeitschrift für Verwaltungsrecht 576-578.

Chapter 7 Military Law in Italy Jörg Luther 1

Table of Contents I. The Historical and Political Background of the Italian Military Law System 1. Parliamentary Control and the Dignified Role for the Individual Soldier 2. Democratic Control and Rights and Duties of Soldiers a. The Constitution b. Government c. Public II. Basic Rules Concerning the Use of Armed Forces 1. The Mission of the Armed Forces 2. Permissible Operations a. Crisis Management Abroad b. Humanitarian Aid at Home and Abroad c. Combined Operations with Civilian Aid Organisations d. Cooperation between the Armed Forces and Other Governmental Authorities e. States of Emergency at Home f. Natural Disasters or Humanitarian Catastrophes at Home g. Evacuation of a State's Nationals h. Use of the Armed Forces in Other Cases 3. Limitations on Operations Undertaken Jointly with the Armed Forces of Another Country III. Constitutional Powers 1. The Position of the Head of State 2. The Powers of the Government 3. The Participation of Parliament in the Decision to Deploy the Armed Forces 4. The Functions of the Minister of Defence 5. The Role of the Military Leadership 6. Parliamentary Control a. The Parliament's Powers to Control the Armed Forces b. Special Forms of Parliamentary Control over the Military c. Control by the Court of Auditors and Comparable Institutions . . . .

1

Professor of Law, Università del Piemonte Orientale, Alessandria (Italy).

429 429 431 431 434 435 436 436 438 441 442 443 443 446 447 447 447 447 448 448 449 450 453 454 455 455 456 457

428

Jörg Luther

IV. The Structure of the Armed Forces 1. The Armed Forces and their Administration 2. Involvement of the Civilian Administration in the Procurement of Material and Supplies for the Armed Forces V. Soldiers'Rights and Duties 1. Restrictions of Fundamental Rights of Soldiers a. General Aspects b. Political Neutrality of Soldiers c. Freedom of Association d. Conscientious Objection e. Equal Treatment f. Other Fundamental Rights and their Restriction 2. Legal Obligations of Soldiers 3. The Power of Command and the Duty to Obey 4. Social Rights of Soldiers and their Families 5. Rules Governing Working Time 6. Legal Remedies, in Particular Rights to File a Complaint 7. Rights of Institutional Representation VI. The Relationship of the Superior to Subordinate Personnel 1. Legal Rules concerning the Relationship between Superior and Subordinate a. The Position of the Superior b. The Duties of the Superior c. The Use of Force to Secure Compliance with Orders 2. Subordination of Soldiers to the Command of a Superior of Foreign Armed Forces 3. Service Regulations and their Legal Nature VII. Sanctions 1. Disciplinary Law a. Disciplinary Power b. Relation to Criminal Law c. The Purpose of Disciplinary Law d. Disciplinary Measures e. Disciplinary Law and the European Convention on Human Rights . . f. The Disciplinary Procedure and Legal Remedies g. Representation of the Armed Forces during Disciplinary Proceedings . h. Measures of Commendation 2. Military Criminal Law a. General Issues b. Relation to General Criminal Law c. Military Criminal Courts d. Relationship between Civilian and Military Courts e. Special Rules with Regard to Legal Procedure and Sanctions System . f. The Military Prosecutor g. Justification by Superior Orders h. Sanctions for Non-Compliance with International Humanitarian Law i. Ratification of the Rome Statute of the International Criminal Court VIII. Regulations Governing Guard Duties 1. Powers of Guards Towards Military Personnel as well as Towards Civilians 2. Performance of Guard Duties by Soldiers of Foreign Armed Forces . . .

457 457 459 459 459 459 461 462 463 464 465 466 469 471 474 475 477 478 478 478 479 480 480 482 483 483 483 484 486 486 487 488 489 489 490 490 492 493 494 495 497 497 498 499 499 499 501

Military Law in Italy 3. The Rules Concerning the Carrying and Use of Arms and other Military Equipment IX. Legal Reforms with Respect to Multinational Operations and Structures . . 1. Pertinent Legislation 2. Probability of Future Reforms 3. Academic Discussion X. Select Bibliography 1. Pertinent Legislation Parliamentary statutes Delegated governmental legislation 2. Selected Books and Articles

429

501 502 502 505 506 507 507 507 509 513

I. The Historical and Political Background of the Italian Military Law System 1. Parliamentary Control and the Dignified Role for the Individual Soldier The Italian military law system has been influenced by military, legal and constitutional factors. Obligatory military service has a long tradition in Italy 2 dating at least from the Machiavellian "Dicorso dell'ordinare lo stato di Firenze alle armi" (1506). The conscription system was also influenced by the French Revolution and the Napoleonic model of conscription (loi Jourdan). The military reformers of the eighteenth century (La Marmora, Ricotti) were inspired both by the French and Prussian models of a "qualified army" and of the "armed nation", which are based on a regional mix of soldiers employed far from home. This tradition has been criticised since Garibaldi's exaltation of volunteers and the search for alternative models of defence during the Risorgimento. The aristocratic recruitment of the officer corps, the "spirit of the officers", the frequent use of military forces for police tasks, and an excessive use of disciplinary powers during the First World War contributed to the formation of an institutional culture which valued escape from parliamentary control and did not guarantee a sufficiently dignified role for the individual soldier. The military leadership did not defend public security against fascist organisations, and entered into the first government of Mussolini. A large part of the military leadership encouraged the shift from the "armed nation" to a "nation organised for war" and to the fascist "military nation". Only a small part of the officer corps tried to resist the German occupation and was involved in the activities of the Resistenza. 2 G. Rochat, L'esercito italiano da Vittorio Veneto a Mussolini (1919-1925) (Bari, 1967); V. Ilari, Storia del servizio militare in Italia (Roma, 1989), 3 vols.; C. Jean (ed.), Storia delle Forze armate italiane 1945-1975 (Milano, 1994).

430

Jörg Luther

The military system was long considered as a special legal system governed by its own internal sources of law and characterised by the doctrine of "special subjection" (sudditanza speciale) to a strong disciplinary power and to duties of "military honour". The legal doctrine inspired by Santi Romano considered the military law system (ordinamento militare) to be an internal and "institutional" legal system capable of deviating from the general laws of the State.3 For a long time the rules concerning military discipline escaped from the principle of legality, and until 1978 there seemed to be no need for Parliament to act. On the other hand, criminal law doctrine prepared for the separation of disciplinary law and military criminal law. Military criminal codes for both the land forces and the navy have existed since 1869. The Military Criminal Code for Peace-time ("codice penale militare di pace", C.P.M.P.) and the Military Criminal Code for War-time ("codice penale militare di guerra", C.P.M.G.) were both enacted in 1941, and were partially revised after the Second World War. They are still in force and are applied by special military courts. The shift to a parliamentary form of government after 1945 did not abolish all royal powers related to military and colonisation matters. In war-time, the King had exercised the supreme command over the armed forces, nominating a "luogotenente" for administrative affairs. Umberto I was murdered after having recommended General Beccaris for the repression of the insurrection in Milan 1889 and nominated General Pelloux to be the Head of the Government. Carlo Emmanuele III participated in the Government's decision to enter the First World War without the approval of Parliament. He refused to exercise his prerogatives vis-a-vis the fascist paramilitary activities. Mussolini promoted the King to the position of "Emperor of Ethiopia" (1936), and he created for the King and for himself the title of "Primo Maresciallo dell' Impero" (1938). Italy's transition to parliamentary democracy and a republican form of government (1943-47) was rendered possible by the liberation from German Nazi occupation which was achieved by both the allied military intervention and the underground forces of the Resistenza movement. From 1947 to 1991, obligatory service was considered by all parties as fundamental both for the defence of the Republic and in order to create a sense of citizenship.

3

See V. Bachelet, Disciplina militare e ordinamento giuridico statale (Milano, 1962), pp. 25 et seqq.; R. Balduzzi, Principio di legalità e spirito democratico nell'ordinamento delle forze armate (Milano, 1988).

Military Law in Italy

431

2. Democratic Control and Rights and Duties of Soldiers a. The Constitution The Italian Constitution deals with the relationship between democracy and the rights and duties of soldiers first and foremost in Article 52:4 "The defence of the Fatherland is a sacred duty for every citizen. Military service is obligatory within the limits and the ways set by law. Fulfilment thereof shall not prejudice a citizen's employment, nor the exercise of political rights. The order of the armed forces complies with the democratic spirit of the Republic." The founding fathers refused to declare permanent neutrality for the country. They preferred to exclude "every form of totally or mainly professional, mercenary, or praetorian troops." The democratic spirit clause was intended to hold the military "out of politics" and to ensure that "the military, while preserving the principle of unity and discipline in its organisation and rulings, should never lose respect for the human dignity and freedom which are the fundamental elements of civil progress."5 As Aldo Moro stated: "The provision is indispensable in view of what has happened in Italy and what can happen in all armies: the provision aims to secure the entry of a democratic spirit into the army in a way which is compatible with its military structure. It becomes unthinkable that the military hierarchy should suffocate the dignity of the human person as has happened too often during disciplinary proceedings."6 The use of arms by the armed forces as decided by the democratic legal system can be considered as an exercise of popular sovereignty, as it is expressed by the fundamental provision of Article 1 of the Italian Constitution: "Italy is a democratic Republic, founded on work. Sovereignty belongs to the people, which exercises it in the forms and within the limits of the Constitution." The institution of the armed forces was perhaps not originally intended to be an instrument for the protection of human rights, and obligatory military service is perhaps not the only means to ensure a fundamental right to collective defence. The citizen's duty of military service, however, is also a specification of the general duty of political solidarity as expressed by Article 2 of the

4

The oath of the Italian soldier is laid down in Art. 2 Law No. 382/1978: "I swear to be loyal towards the Italian Republic and to observe the Constitution and the laws and to fulfil, with discipline and honour, all the duties of my status for the defence of Patria and the safeguard of free institutions." 5

Umberto Merlin, Atti Assemblea Costituente (AC), p. 4129.

6

Aldo Moro, AC, Prima sottocommissione, p. 397.

432

Jörg Luther

Constitution: "The Republic recognises and guarantees the inviolable rights of the human being, as an individual and in society, where he expresses his personality, and demands the fulfilment of the peremptory duties of political, economic, and social solidarity". The "democratic spirit"-clause must be read in the light of other "fundamental principles" of the Constitution, such as the principle of equality and reasonableness (Article 3), the principle that citizens have to "contribute to the material and spiritual progress of society" (Article 4), the principle of "indivisibility" of the Republic and promotion for local autonomy (Article 5) and the respect for cultural rights (Articles 6-9). The "fundamental principles" require that the operations of the armed forces must comply, inter alia, with i) the limits deriving from "generally recognised tenets of international law" (Article 10 (1), ii) the prohibition of "war as an instrument of offence against the liberty of other peoples and as a means for settling international controversies" (Article 11), iii) the "limitations of sovereignty which are necessary for an order that ensures peace and justice among nations" (Article 11), and iv) the provision on the flag of the Republic (Article 12). Various more specific constitutional rules deal with the organisation and procedures of military operations. The reform of the chapter of the Constitution which deals with the "order of the Republic" attributes "Defence and Armed Forces" to the exclusive legislation of the state (Article 117). The parliamentary form of government is safeguarded by Article 78: "The chambers decide on the State of War and confer the necessary powers on the Government." Parliament can decide by special legislation to extend the legislative period (Article 60 (2)). Article 87 of the Constitution confers on the President: the representation of national unity, command over the armed forces, the presidency of the Supreme Council of Defence (which is established by statute), and the duty to declare the State of War after deliberation by the Chambers. In addition, Article 98 provides that all public servants, military as well as civilian, are "exclusively at the service of the Nation". A statute can provide for limitations of the right to membership in political parties for "career military in active service" as well as other agents of sovereign powers such as magistrates, functionaries, agents of the police, and diplomatic and consular staff (Article 98 (3)). Article 103 (3) provides for a special military jurisdiction, distinguishing between war-time and peace: "Military tribunals in time of war have the jurisdiction established by statute. In time of peace they have jurisdiction only for military crimes committed by members of the armed forces." A transitory provision of the Constitution has ordered the reorganisation of the Supreme Military Tribunal according to the principles of fair trial and to the right to have recourse

Military Law in Italy

433

to the other supreme courts (Article VI).7 The independence of the military judges is guaranteed by special statutes (Article 108 (2)). Elementary due process rights (as provided for in the first part of the constitution (Articles 13, 24-27)) cannot be excluded or suspended by the military jurisdiction. In times of war, however, the judgements of military tribunals may be excluded from recourse to the Corte di Cassazione (Article 111 (7)). Finally, Article 27 (4) provides for the abolition of the death penalty "except in cases provided for by martial law." The impact of these constitutional rules on military law has always been controversial. The "democratic spirit" - clause has for a long time been seen only in the context of the subordination of the armed forces to a democratic political power (and the general duty of loyalty, Article 52). This has included the principle of political neutrality for soldiers which implied a prohibition on participation in the activities of political parties and a prohibition on the formation of associations which "pursue, even indirectly, political ends by means of organisations of a military character" (Article 18). The jurisprudence of the Constitutional Court on various aspects of military law encouraged reform legislation in the seventies, in particular the Conscientious Objection Act of 1972, the law containing "Principles on Military Discipline" of 1978, and the reform of military jurisdiction of 1981. Not all controversial aspects of the military law system have been faced by the court because opposition and citizens have only indirect access to constitutional justice. Nor is it likely that the constitutional debates concerning a reconception of the rights and duties of soldiers and the form of government of the defence are over. In any case, the Constitution has promoted a process of "constitutionalisation" of the armed forces. The Constitutional Court, when ascertaining the constitutionality of the duty of military service for stateless persons, has summarily stated that "the Constitution (Articles 11 and 52 (1)) imposes a conception of Italy's military machinery which is no longer inspired by the idea of a powerful position of the state or, as in the past, of a power-state (stato di potenza, Machtstaat), but rather by the idea of guaranteeing the freedom of the people and the integrity of the national order". 8

7

Corte costituzionale, Judgement No. 119/1957 has qualified non peremptory the term of one year. 8

Corte costituzionale, Judgement No. 172/1999.

434

Jörg Luther

b. Government The white book "New Forces for a New Century" (2001)9 underlines the fact that Italian military policies and institutions have changed significantly in the nineties and have developed a "new model of defence" with new functions and new structures.10 New international and multinational missions and the reforms of the national administration have called for the reorganisation of the personnel resources and structures of the Ministry of Defence (Ministero della Difesa) and of the armed forces (Forze Armate).11 The "structural reform of the armed forces" created a "new military instrument", which is meant to ensure "the permanent availability of structures of command and control over all single and joint armed forces, and of land, sea and air force which can be easily integrated into multinational or rapid-reaction units. These units would be charged with the defence of national territory and of vital lines of communication crossing international sea or airspace, and would be capable of participation in multinational peace-support missions".12 The numbers of military personnel have been reduced from 380,000 to 250,000 soldiers. The Law of 14 November 2000 (No. 331), which contains "Rules for the Institution of the Professional Military Service" authorises the government to define the rules for the further cutback of the personnel to 190,000 soldiers, who will serve on a voluntary basis "for use both within and outside the national territory". Obligatory service will be reintroduced only if there is a specific need, such as declared States of War or cases of a "grave international crisis affecting Italy either directly or because of its participation in an international organisation" (Article 2 (1)). The abolition of the existing conscription has been decided for 2007 but could be also anticipated. This choice of abolishing the conscription is considered compatible with the democratic character of the armed forces. It does, however, lead to a reconfiguration of the rights and duties of soldiers. The death penalty was abolished in

9

Ministero della Difesa (ed.), 2001. Nuove Forze per un nuovo secolo (Roma, 2001), . 10 Ministero della Difesa (ed.), Modello Armate negli anni 90 (Roma, 1991).

di Difesa: lineamenti di sviluppo delle Forze

11 Parliamentary statutes: Legge 18 February 1997, No. 25, "Attribuzioni del Ministro della difesa, ristrutturazione dei vertici delle Forze armate e dell'Amministrazione della difesa"; Legge 14 November 2000, No. 311, "Norme per l'istituzione del servizio militare professionale"; Legge 30 November 2000, No. 356, "Disposizioni riguardanti il personale delle Forze armate e delle forze di polizia". 12 Art. 1 Decreto Legislativo 28 November 1997, No. 464, "Riforma strutturale delle Forze armate, a norma dell'articolo 1, comma 1, lettere a), d) ed h), della legge 28 December 1995, No. 549".

Military Law in Italy

435

1994 and even a partial reform of the military criminal code for war-time was undertaken in 2002 (infra XI. 1). New statutes on conscientious objection and on women's rights to voluntary military service have been enacted.13 The Law No. 230/1998 ("New rules on conscientious objection") has charged the National Office for the Civilian Service to develop new forms of "civil unarmed and non violent defence" (Article 8 (2) (e)). c. Public Public opinion gives credit to the democratic accountability of the armed forces, most of all to the Carabinieri. But on several occasions in the seventies public was concerned about the loyalty of the military leadership towards the democratic government. The discovery of several coup d'état plans (for ex. Borghese 1970) the infiltration by the Masonic Lodge (Licio Gellí), and the blocking of judicial inquiries on terrorism by the secret services have all helped the push for a further démocratisation of the armed forces. The Catholic and secular pacifist movements obtained recognition of the right to conscientious objection (Law No. 772/1972). The Radical Party's initiatives to hold a referendum for the abrogation of military jurisdiction has forced further reform legislation.14 The "bipartisan" approach of the political forces in matters of national defence during the fight against national terrorism (Moro) and with respect to international security (Helsinki) has facilitated reform of the legal basis of the military status (1978/1985). In the nineties, the Italian Constitution entered a period of "transition" which was caused by a) the public demand for institutional reforms of the administration and the Constitution, b) the change from a purely proportionality-based to a more majority-based electoral system by way of referendum, c) the creation of a new party system, d) judicial activism with respect to prosecuting crimes of corruption and the Mafia, and e) a more active role of the European Union and of the local territorial autonomies. These 13 Legge 8 July 1998, No. 230, "Nuove norme in materia di obiezione di coscienza"; Legge 20 October 1999, No. 300, "Delega al Governo per l'istituzione del servizio militare volontario femminile"; Decreto legislativo 31 January 2000, No. 24, "Disposizioni in materia di reclutamento su base volontaria, stato giuridico e avanzamento del personale militare femminile nelle Forze armate e nel Corpo della guardia di finanza, a norma dell'Artide 1, comma 2, della legge 20 October 1999, No. 30". 14 The first petition to abrogate the whole military jurisdiction was declared unconstitutional (Corte costituzionale, Judgement No. 16/1978). A second petition for the abrogation of 41 articles of the relevant legislation was declared admissible (Corte costituzionale, Judgement No. 25/1981). The referendum was no more held, because parliament enacted the Legge No. 180/1981.

436

Jörg Luther

changes have encouraged the enactment of substantial administrative reforms, including with respect to the armed forces and related constitutional amendments.15 The "transition" experienced several moments of political crisis which rendered some international missions controversial (Kuwait, Albania, Kosovo, Afghanistan). Some members of the military leadership entered politics or criticised the political class, but the struggle for power did not spur reform of the national defence structure. The public debates and the projects of constitutional reform which were negotiated in Parliament did not involve the general principles of the Constitution on defence, except those concerning the existence of a military jurisdiction in peace-time.16 Devolution of powers did not affect defence matters, and the contemplated changes of the form of Government have not reduced the powers of Parliament.17 Public opinion has always a certain sensitivity for human rights issues. Several parliamentary inquiries have addressed specific problems relating to the armed forces, in particular the discrimination against younger recruits by older soldiers (so-called "nonnismo").

II. Basic Rules Concerning the Use of Armed Forces 1. The Mission of the Armed Forces According to Article 52 of the Constitution, the mission of the armed forces is first of all the defence of the "patria", a term which is traditionally understood to refer to the integrity of the national territory (unlike "fatherland/ Vaterland").18 This provision has, however, not been construed as a prohibition on the use of the armed forces for other purposes, since the concept of "armed 15 See J. Luther, Die Verfassung in Zeiten des "Übergangs": Italienische Beobachtungen, 50 (2002) Jahrbuch des öffentlichen Rechts, pp. 331 et seqq. 16 The abolition of the military court in peace-time was prospected by the project of constitutional reform adopted in 1997 by a commission of both chambers of Parliament (Commissione Bicamerale), see P. Rivello, Processo e ordinamento giudiziario militare (Torino, 2000), pp. 41 et seqq. 17 Art. 100 section 2 of the project adopted by the Commissione Bicamerale: "The Chamber of Deputies deliberates, upon proposal of the Government, the employment of the armed forces outside of the national boundaries for the purposes permitted by the Constitution." 18 By "mission" is meant in a technical sense the scope and mandates for the employment of the armed forces.

Military Law in Italy

437

forces" encompasses both the "Arma dei Carabinieri" and the "Guardia di Finanza" (Customs Guard) which are both used for specific police tasks.19 The Statute of 11 July 1978, No. 382 on "Principles of Military Discipline", has authorized an expansion of the tasks of the armed forces: "The task of the army (Esercito), navy (Marine), and air force (Aeronautica) is to secure, in compliance with the oath made and with the obedience due to the orders received, the defence of the Fatherland and to aid in the safeguarding of the free institutions and the wealth of the national community in cases of public calamity." (Article 1, now abrogated). Since 1978, further additions to the tasks of the armed forces have been brought about by decree-laws which were then converted into parliamentary statutes. These sources of law have authorised both international peace support operations and national security operations (see infra 2.). The governmental decree of 28 November 1997, No. 464, provides for a reorganisation of the "military instrument" for the purpose of "the permanent availability of structures of command and control over the armed forces, and of forces which can be easily integrated into multinational or rapid-reaction units. These units would be charged with the defence of national territory and of vital lines of communication crossing international sea or airspace, and would be capable of participation in multinational peace-support missions" (Article 1 (1)). Furthermore, the reform aimed at "the differentiation and enlargement of the activities related to civil and environmental protection." (Article 1 (2) (c)). The decree contains a general authorisation to use the armed forces "for purposes of public utilities and environmental protection". Article 5 (1) of the Decree authorises to use the armed forces for: "a) campaigns against forest fires (...), b) release of meteorological data, c) release of periodical bulletins on avalanche risks, d) nuclear, biological, and chemical surveys, and decontamination work, e) advisory service for administrations . . . in matters of planning and assisting in situations of national emergency, f) contribution of personnel and materials to those agencies whose institutional tasks include the safeguarding of human life on land and at sea, g) reestablishment of primary and secondary road conditions, h) operations against sea pollution by hydrocarbons and other agents, i) hydro-oceanographic and aerial photogrammetric survey of interesting areas, and production of the relative cartographic support, regardless of the exchange of geo-topographical 19

See the partially obsolete Art. 2 of the Military Penal Code for Peace-time of 1941: "Definition of 'military persons' and 'national armed forces': Under this Code: 1) 'Military persons' refers to all members of the Army, Navy, Air Force, and Customs Guard, as well as to the individuals designated as such in accordance with the law. 2) 'National armed forces' refers to all above mentioned military forces."

438

Jörg Luther

and geodetic information, papers, and data, 1) intervention in water emergencies regarding minor islands in ordinary regions, m) interventions in a hyperbaric chamber for persons affected by barotrauma and interventions of oxygentherapy, n) interventions in the sea environment for the protection of fauna and flora, and water monitoring, activities of environmental research at sea, and exchange of information and data in matters of climatology, and o) planning and realisation of courses and training for combined civil-military operations." 20 Finally, the new Law of 14 November 2000, No. 331, contains "Rules for the Institution of a Professional Military Service". It states the following principles and tasks: 1. The armed forces are at the service of the Republic. 2. The organisation and the activities of the armed forces must conform to Articles 11 and 52 of the Constitution. 3. The defence of the State has priority among the tasks of the armed forces. 4. Furthermore, the armed forces are obligated to operate for the realisation of peace and security, in conformity with the rules of international law and according to the determinations of the international organisations in which Italy participates. 5. The armed forces are obligated to safeguard free institutions, and to carry out specific tasks in circumstances of public calamity and in other cases of extraordinary necessity and urgency.

2. Permissible Operations The Constitutional Court has not been confronted with questions concerning the constitutionality of the above-mentioned statutes, legislative decrees, or decisions of the political organs (Parliament, Government, President). The academic debate has addressed different questions concerning the interpretation of the pertinent constitutional provisions.21 A first group of questions is related to the interpretation of Article 52 of the Constitution. The prevailing interpretation holds that "defence of patria" includes the defence of "free insti20

Art. 5 (2) Decreto Legislativo 28 November 1997, No. 464, "Riforma strutturale delle Forze armate a norma dell'articolo 1, comma 1, lettere a), d) e) h), della L. 28 Dicembre 1995, No. 549".

21

The philosophical background of the Italian debate is described by Ν. Bobbio, Il problema della guerra e le vie della pace (Bologna, 1979); S. Cotta, Dalla guerra alla pace (Milano, 1989); L. Bonanate, La Guerra (Bari, 1998); C. Jean, Guerra, strategia, sicurezza (Bari, 1997).

Military Law in Italy

439

tutions" against internal as well as exteraal attacks, if the police forces cannot guarantee a sufficient level of security. However, since the conscription system was (and could theoretically still be) organised to fulfil the duty to defend the "patria", it is possible to argue that the territorial scope of military actions is restricted to defence against attacks on the territory of the Italian state.22 Most missions abroad are, however, carried out by volunteers. Another interpretation which relies both on the democratic-spirit-principle and on the principle of political solidarity argues that the defence of "patria" is simply the military's highest priority mission. This would not exclude the possibility that the political organs decide, on the basis of democratic deliberations, to use the armed forces for other purposes, such as for international political solidarity. In this case, however, the use of drafted soldiers would need a specific legal basis since Article 23 of the Constitution provides that "no one can be forced to perform services of a personal or material nature except on the basis of a law." The second group of questions relates to the war-repudiation clause of Article 11 of the Constitution. Restrictive interpretations try to interpret the clause only as a hortatory ethical norm, 23 or as a legal norm which is, however, subject to political sanctions,24 and finally, apply the clause only to interstate conflicts and consider as permitted all kinds of "wars" in the defence of the liberty of other peoples.25 Broader interpretations see this clause as a prohibition on the use of military means for purposes other than self-defence.26 The most radical positions hold unconstitutional every kind of use of international collective violence,27 arms and technology/intelligence transfers to belligerent parties,28 defence of other nations as a duty of international collective security organisations,29 the use of Italian territory by foreign military forces which could be involved in a war (if this is not under the control of the Italian 22

A. Boldetti and G. Paganetto, Norme di principio sulla disciplina militare e libertà costituzionali, Riv. trim. dir. pub (1979), No. 2-3.

23

G. Balladore-Pallieri, Diritto costituzionale (Milano, 1953), p. 383.

24

M. Mazziotti di Celso, Lezioni di diritto costituzionale (Milano, 1985), pp. 153 et seqq.

25

Mazziotti di Celso, ibid.

26

A. Cassese, Wars forbidden and Wars allowed by the Italian Constitution, Studi in onore di G. Balladore Pallien (Milano, 1978), vol. II, pp. 120 et seqq.; idem, in G. Branca and A. Pizzorusso (eds.), Commentario della Costituzione (Bologna-Roma, 1975), Art. 11, pp. 565 et seqq. 27 28

Cassese, ibid., p. 572.

G. Ferrara, Guerra (stato pp. 816 et seqq.

di), Enciclopedia

del diritto

(Milano, 1970), vol. XIX,

29 A. Bernardini, L'Article 11 rivisitato, (1997) Rivista di diritto internazionale, pp. 609 et seqq.

440

Jörg Luther

Parliament30), and the intervention of Italian forces in civil wars at home or abroad.31 Ultimately there is a majority opinion in favour of intermediate opinions which combine idealism and realism.32 The war-repudiation clause must be interpreted in the light of the development of the international rule of law. It applies to all kinds of armed conflicts which could make Italy offend the freedom of a "people" which has the right to political self-determination.33 The provision cannot be construed to deny the exercise of sovereign rights or as a prohibition of counter-offensive military operations (including preventive actions in cases of danger and threats of armed attacks). It is furthermore possible to adopt an autonomous interpretation of the clause in the light of Italian history, that is, to interpret it as a prohibition of military actions for purposes of "rappresaglia" or "threat", 34 and an authorisation of peace-enforcement or humanitarian operations against totalitarian regimes. A third group of questions is related to the interpretation of the limitationof-sovereignty clause in Article 11 of the Constitution and its relationship to the war-repudiation clause. The limitation clause requires the fulfilment of international obligations which derive from treaties establishing an international system or organisation and provides that such treaty norms take precedence over national law. The clause applies to all kinds of operations under Chapter VII of the UN-Charter, but also to other peace-keeping operations which are organised by the United Nations and authorised by interested states. A more expansive interpretation considers that this clause is applicable to peacekeeping and peace-enforcement operations by international organisations, even at the regional level (e.g. OSCE, NATO, EU), under the condition that the rules of the international organisation fulfil the condition of reciprocity, secure peace and justice, and that the operations do not violate international law. A more restrictive interpretation considers that the clause is applicable only to (multi-) national operations which are "recommended" or "authorised" by the Security Council.35

30

Cassese, 'Wars forbidden and Wars allowed by the Italian Constitution', supra n. 26.

31

Ferrara, 'Guerra (stato di), Enciclopedia del diritto', supra η. 28, p. 831.

32

F. Basetta, in: E. Boursier Niutta et al. (eds.), Elementi di Diritto Militare, della Rassegna dell'Arma dei Carabinieri (Roma, 1999), pp. 11 et seqq.

Quaderni

33

See e.g. Art. 103 C.P.M.P.: "Hostile acts of a commander against a foreign nation".

34

C. Mortati, Istituzioni di diritto pubblico (9th edn, Padova, 1976), pp. 1490 et seq.

35

S. Sicardi, I mille volti della guerra, la Costituzione e il diritto internazionale, in: M. Dogliani and S. Sicardi (eds.), Diritti umani e uso della forza (Torino, 1999), pp. 105 et seqq.

Military Law in Italy

441

a. Crisis Management Abroad Operations of crisis management abroad are permissible as "multifunctional peace operations" (operazioni di pace). This is specified in the "Manuale interforze per le operazioni di pace", issued by the Capo di Stato Maggiore della difesa, and "Manuale per le operazioni di mantenimento della pace", issued by the Capo di Stato Maggiore dell'Esercito in 1994. Such peace operations include humanitarian aid, conflict prevention, peace-making, peace-keeping, peaceenforcement and peace-building. In addition, military doctrine distinguishes between multinational operations under UN command, those which are "delegated" to other international organisations (OSCE, NATO, WEU), and those which are based on bilateral and multilateral agreements and operations based only on a national decision. The legal basis of the latter is considered to be "not clear and unequivocal". Considering the differing mandates, the variety of the nations participating, the degree of sovereignty which is exercised by the inviting State, and the operational needs, the legal bases should necessarily vary. The only specific legal basis for crisis management operations abroad is now provided by the Law of 14 November 2000, No. 331. According to this law, obligatory recruitment can be reintroduced not only in cases of a declared State of War, but also in a "grave international crisis which affects Italy directly, or if this is required due to Italy's participation in an international organisation" (Article 1 (2)(c)). The Italian doctrine of international law distinguishes operations of observation and control (even when armed) from international policing operations.36 The operations in Iraq, Albania, Kosovo, and Afghanistan have been declared international policing operations. They have, however, been controversial since their compatibility with international law was called into question. Some even asserted that Italy's participation in them violated the national war-repudiation clause.37 36

N. Ronzitti, Lo status delle Forze armate italiane impegnate in operazioni "fuori area" condotte sotto l'egida di organizzazioni internazionali (Roma, 1996). 37

For the case of Iraq-Kuwait: V. Lippolis, La crisi del Golfo Persico in Parlamento: le problematiche della guerra e le missioni militari all'estero, (1991) Giurisprudenza costituzionale, pp. 1709 et seqq.; U. Allegretti, Guerra del Golfo e Costituzione, (1991) Foro italiano, vol. V, pp. 361 et seqq.', E. Bettinelli, Guerra e operazioni di polizia intemazionale, (1991) Foro italiano, vol. V, pp. 375 et seqq; for the case of Albania S. Grassi, L'Italia e la Forza Multinazionale di Protezione in Albania, in: A. De Guttry and F. Pagani (eds.), La crisi albanese del 1997 (Milano, 1999), pp. 271 et seqq-, for the case of Kosovo: G. De Vergottini, La Costituzione e l'intervento NATO nell'ex-Jugoslavia, (1999) Quaderni costituzionali, pp. 122 et seqq.; G. Motzo, Costituzione e guerra giusta alla periferia dell' Impero, (1999) Quaderni costituzionali, pp. 373 et seqq.; C. Pinelli, Sul fondamento degli interventi umani a fini umanitari, (1999) Diritto Pubblico, pp. 61 et seqq.; L. Carlassarre,

442

Jörg Luther

Operations of crisis management abroad were authorized for the first time by a legislative ratification of a bilateral agreement (see Article 80 of the Constitution) with the Government of Lebanon and the organisation of the MFO forces in 1982.38 Today, authorisations are brought about by a resolution of Parliament or by the transformation of a governmental decree-law into a parliamentary law (Article 77 of the Constitution). In the case of the mission in Albania, the Italian armed forces were authorised to "prevent and hold back the flux of persons who are intending or attempting to enter Italy illegally". In the case of Kosovo, the authorisation was given only "for the purpose of giving assistance to the international missions of peace support", and for "humanitarian aid to the refugees from Kosovo". The participation of Italian aircraft in the military attacks on Yugoslavian territory and the use of Italian territory for these attacks was based on a decision of the Government (see infra III.3.).

b. Humanitarian Aid at Home and Abroad "Humanitarian aid" at home and abroad can be justified by the constitutional principle of solidarity and by the provision that the Republic has to "guarantee" inviolable human rights (Article 2 of the Constitution). According to Article 1 of Law No. 331/2000, specific tasks of humanitarian aid at home and abroad can be undertaken in cases of public calamity and in other cases of extraordinary necessity and urgency. The Statute on the "Institution of the Costituzione italiana e partecipazione a operazioni militari, in: N. Ronzitti, Nato, conflitto in Kosovo e costituzione italiana (Milano, 2000), pp. 157 et seqq.; M. Dogliani and S. Sicardi (eds.), Diritti umani e uso della forza (Torino, 1999); N. Ronzitti, Raids aerei contro la Repubblica federale di Jugoslavia e Carta delle Nazioni Unite, (1999) Rivista diritto internazionale, pp. 477 et seqq.; for the case of Afghanistan: see G. De Vergottini, Guerra e costituzione, Quaderni costituzionali 2002, pp. 19 et seqq. 38 Legge 29 December 1982, No. 967, "Ratifica ed esecuzione dell'accordo tra il Governo della Repubblica italiana e il direttore generale della Forza multinazionale e di osservatori, effettuato con scambio di lettere, con due allegati, a Roma, il 16 marzo 1982, per la partecipazione dell'Italia alla Forza multinazionale e di osservatori nel Sinai"; Legge 29 December 1982, No. 968, "Ratifica ed esecuzione dell'accordo di sede tra il Governo della Repubblica italiana e la Forza multinazionale ed osservatori (MFO) per lo stabilimento in Italia del quartiere generale dell? Organizzazione, firmato a Roma il 12 giugno 1982"; Legge 29 December 1982, No. 969, "Ratifica ed esecuzione dell'accordo mediante scambio di lettere tra il Governo della Repubblica italiana ed il Governo della Repubblica Libanese per la partecipazione dell'Italia alla forza multinazionale di pace a Beirut"; Legge 29 December 1982, No. 970, "Ratifica ed esecuzione dell'accordo effettuato mediante scambio di lettere tra il Governo della Repubblica italiana ed il Governo della Repubblica Libanese per la partecipazione dell'Italia alla nuova forza multinazionale di pace per Beirut, firmato a Beirut il 29 settembre 1982", Gazzetta Ufficiale 8 January 1983, No. 7.

Military Law in Italy

443

National Service of Civil Protection" (Law of 24 February 1992, No. 225) qualifies the armed forces as an operative structure of this service, and defines its tasks and operations. The use of this service requires a decision of the Government.39 The service is co-ordinated by a specific department of the Presidency of the Council of Ministers. In case of humanitarian aid abroad, its tasks may be specified by a decree-law.40 By virtue of the constitutional reform, civil protection is now an object of shared "concurring" legislative competence by the regions and the State, and can be regulated by inter-regional agreements with "territorial bodies of another State" (Article 117 of the Constitution). c. Combined Operations with Civilian Aid Organisations Combined operations with civilian aid organisations are not prohibited by the Constitution and are authorised on the basis of the above-mentioned Statute on the National Service of Civil Protection and the relevant administrative rules.41 These organisations may employ conscientious objectors. The employment of conscientious objectors in Bosnia's peace-keeping operations was permitted by the Law of 8 August 1996, No. 428, subject to a specific authorisation by the Ministry of Defence, and under a strict prohibition of any kind of "interference with the NATO mission". d. Co-operation between the Armed Forces and Other Governmental Authorities The armed forces are nowadays charged with the "planning and realisation of courses and training for combined civil-military operations."42 But according to Article 97 (1) of the Constitution, the law of the public administration must respect the principles of delimitation of competences and responsibilities, of 39

Art. 20 (2) (a) Decreto legislativo 30 July 1999, No. 300.

40

See for example Art. 1 (2) Decreto-legge 21 April 1999, No. 110, "Succour the refugees of Kosovo and, especially, to supply welcome camps and field hospitals, guarantee the regular flow and distribution of human aid, and within the Albanian territory to guarantee the necessary conditions of security for the international peace supporting missions.", Gazzetta Ufficiale 23 April 1999, No. 94.

41

Decreto del Presidente della Repubblica 8 February 2001, No. 194 "Regolamento recante nuova disciplina della partecipazione delle associazioni di volontariato alle attività di protezione civile", Gazzetta Ufficiale 25 May 2001, No. 120. 42

Art. 5 (1) (o) Decreto Legislativo 28 November 1997, No. 464, "Riforma strutturale delle Forze armate a norma dell'articolo 1, comma 1, lettere a), d) e h), della L. 28 December 1995, No. 549".

444

Jörg Luther

efficiency ("buon andamento"), and impartiality of all administrations even when involved in cooperation. Duties of other authorities of national, regional, and local government to cooperate in war-time, however, are still provided for by legislation dating from the fascist period. 43 During military operations in war-time, the supreme command possesses all civil powers, including the controversial power to enact regulations "having the status of laws" ("bandi").44 In peace-time, the armed forces can receive cooperation from different services relating to their administration, for example from the military health service or the military police service. On the other hand, cooperation can also be extended by the armed forces for the purposes of civil protection (supra sub b. and infra sub f.) and the safeguarding of free institutions (infra sub e.), as well as for purposes of environmental protection as defined by specific laws (infra sub h.). In all these cases, the intervention of the armed forces seems to be justified only on the basis of the subsidiarity-principle (which is not fully recognized as such). 45 And the use of the armed forces for supplying public services has been paralysed 46 by illegal strikes which were not authorised by the new law regulating strikes in public services (implementing Article 40 of the Constitution). 47 A specific combination of defence and public security matters is realised by two special armed forces branches which are integrated into the national police forces. The "Arma dei Carabinieri" and the "Guardia di Finanza" are subordinated to the Minister of Interior and to the Minister of Finance respectively. The Constitution distinguishes defence from general security matters (Article 117). This rule provides that only public security authorities may adopt measures restraining personal freedom (Article 13 (3)) and that only officials of the judiciary police may order the sequestration of stamps (Article 21 (4)). The 43

Regio Decreto 8 July 1938, No. 1415, "Approvazione dei testi della legge di guerra e della legge di neutralità", Gazzetta Ufficiale 1938, No. 211; Legge 21 May 1940, No. 415, "Organizzazione della nazione per la guerra"; Regio Decreto 31 October 1942, No. 1611, "Testo unico delle leggi sulla disciplina di cittadini in tempo di guerra". The validity of these regulations is controversial. 44

Art. 17 Regio Decreto 8 July 1938, No. 1415.

45

On the subject of civil protection, see Art. 2 Legge No. 225/1992; on public security, see G. Corso, La difesa e l'ordine pubblico, in: G. Amato and A. Barbera (eds.), Manuale di diritto pubblico (5th edn, Bologna, 1997), vol. III, p. 278. 46

Art. 5 (1) (o) Decreto Legislativo 28 November 1997, No. 464, "Riforma strutturale delle Forze armate a norma dell'articolo 1, comma 1, lettere a), d) e) h), della Legge 28 December 1995, No. 549" 47

President Pettini ordered the use of the military air traffic control units for supplying striking civil servants.

Military Law in Italy

445

rule does not imply a strict separation between the armed forces and the police forces. In cases of cooperation, however, the armed forces different from Carabinieri and Guards of Finance may not adopt the above-mentioned restraining measures (for the military criminal procedure see infra VII.2.f). Several laws provide that the prefect, being the representative of the national government at the local level, is authorised to demand the use of "other armed forces" for purposes of public security.48 This power should be exercised only in extraordinary cases when it is considered necessary by the political organs for the "safeguarding of free institutions", but the rules have been traditionally applied also to troops guarding at polling stations during elections.49 Several governmental law-decrees have assigned further security tasks to all armed forces. For example "police operations against organised crime in the territory of the regions of Sicily and Calabria, the city and the province of Naples" or "the control of the border crossings in the region Friuli-VeneziaGiulia".50 In the case of the 1992 "Vespri Siciliani" mission, for example, "the prefects of the Sicilian provinces [were] authorised to command contingents of military personnel of the armed forces in the framework of operations of security and control over the territory and of prevention against offences of organised crime". Military personnel were thus authorised to ask for identification and search persons and means of transport and to deliver them to other police forces.51

48

Art. 19 Regio Decreto 3 March 1934, No. 383, "Approvazione del Testo Unico della legge comunale e provinciale", Gazzetta Ufficiale 17 March 1934, No. 65; Art. 13 Legge 1 Aprii 1981, No. 121, "Nuovo ordinamento dell'amministrazione della pubblica sicurezza", Gazzetta Ufficiale 10 January 1987, No. 3; see also the internal rules on the territorial service of 1973, Art. 25: "1. The Armed Forces must furnish their own contributions in cases of a) perturbation of public order, b) public calamities, or c) strikes in sectors of public utility." 49

See D. Angrisani et. al., Elementi di diritto amministrativo militare. Supplemento No. 412001 della Rassegna dell'Arma dei Carabinieri (Roma, 2001), pp. 181 et seqq.

al

50

Decreti-legge 30 December 1993, No. 550; 28 February 1994, No. 136; 29 February 1994, No. 258; 30 June 1999, No. 422; 29 August 1994, No. 521; Legge 27 October 1994, No. 599, Gazzetta Ufficiale 29 October 1994, No. 254. 51

See Legge 23 September 1992, No. 386, "Conversione in legge, con modificazioni del decreto-legge 25 luglio 1992, No. 349 recante misure urgenti per contrastare la criminalità organizzata in Sicilia", Gazzetta Ufficiale 23 September 1992, No. 224 (and following decree-laws); similarly, Legge 28 August 1997, No. 282, "Conversione in legge del decreto-legge 14 luglio 1997, No. 215, recante impiego di contingenti delle Forze armate in attività di controllo del territorio in provincia di Napoli", Gazzetta Ufficiale 2 September 1997, No. 204; "For needs of public security connected to the U N Conference on transnational crime", the law-decree of 20 August, 2000, No. 328 has given a similar authorisation to the prefect of Palermo.

446

Jörg Luther

The Government has proposed an amendment to the immigration law by which the use of warships of the navy (Marina Militare) for police tasks in and out of the territorial waters would be authorised, thereby enabling the Navy to stop ships used for illegal immigration traffic.52 e. States of Emergency at Home The founding fathers did not include a provision in the Constitution which would have prohibited a declaration of the so-called "stato d'assedio". A restrictive interpretation holds that Article 78 of the Constitution has not invalidated the laws on public security53 (which confer on the Minister of the Interior or, if delegated to him, on the prefect, the power to declare a state of public danger (stato di pericolo pubblico) and to enact ordinances for the purpose of employing armed forces, and to deviate from ordinary legislation.54 A more expansive interpretation of Article 78 of the Constitution holds that the use of armed forces in situations of civil war must always be authorised by a formal declaration of a State of War.55 Article 5 C.P.M.G. furthermore states: "In cases of absolute and urgent need it is possible to order, by decree of the President of the Republic, the application of military criminal law of war, even in peace-time, on the whole territory of the country or on one part or more than one part." 56 A similar power of the President is established by Article 3 of the Law on War.57 Both provisions have to be considered incompatible with the principle of the parliamentary form of Government as specified by Article 78 of the Constitution. The only way to authorise the use of Armed Forces in states of emergency seems to be a special decree-law.58

52

Report of the Council of Ministers No. 37 of 1 February 2002.

53

Art. 2 and 214-219 Regio Decreto 18 July 1931, No. 773 "Testo unico delle leggi della pubblica sicurezza" (T.U.L.P.S.), Gazzetta Ufficiatele. 6. 1931, No. 146. 54

Art. 217 T.U.L.P.S: "If it becomes necessary to turn over the protection of public order to the military authority, the Minister of Interior with the approval of the head of government, or, if the power is delegated, the prefect, may declare by decree the State of War." 55 56

P. Barile, Istituzioni di diritto pubblico (Padova, 1975), p. 327.

Contrary: F. Modugno and D. Nocella, Stato d'assedio, in Novissimo Digesto (Torino, 1962), pp. 286 et seqq.

Italiano

57

Regio Decreto 8 July 1938, No. 1415 "Approvazione dei testi della legge di guerra e della legge di neutralità". 58 See G. De Vergottini, Necessità, costituzione materiale e disciplina dell'emergenza, in Diritto e società 1994, pp. 245 et seq.; A. Giardina, Commentario all'Artide 78, in: Branca and Pizzorusso (eds.), 'Commentario della costituzione', supra η. 26, p. 102.

Military Law in Italy

447

f . Natural Disasters or Humanitarian Catastrophes at Home The use of the armed forces in cases of natural disaster and humanitarian catastrophe is authorised by the Statute on the National Service of Civil Protection. Some preventive tasks have been assigned by the Decree of 1997. For example, the defence administration and the navy provide a special service of water supplies to the minor islands of the regions of Sardinia and Sicily.59 The use of the armed forces for purposes of environmental protection can be justified not only as being a part of humanitarian aid and intervention in cases of public calamity, but also as part of the task of conservation of landscape as provided for by Article 9 of the Constitution. g. Evacuation of a State's Nationals Evacuation of Italian citizens and other foreigners, such as during the multinational Rwanda-operation in 1994, has no specific written legal basis. Normally the Minister of Foreign Affairs must declare a "State of Necessity" with the goal of repatriation. If the foreign country does not consent to evacuation, the operation would be qualified as an act of defence or protection (if restricted to embassies), or protection according to international customary law (thus, indirectly implying the sovereignty-limitation clause).60 h. Use of the Armed Forces in Other Cases Other cases of use of the armed forces could be introduced only by a new law, which would either have to specify and respect the priority mission of the defence of "patria", or aim to enforce specific constitutional values. 3. Limitations on Operations Undertaken Jointly with the Armed Forces of Another Country There are no specific constitutional limits for international operations undertaken jointly with armed forces of other states. Such operations would, how59 Decreto Legislativo 30 June 1998, No. 244, "Trasferimento alle regioni a statuto speciale delle funzioni del Ministero della difesa in materia di rifornimento idrico delle isole minori, a norma dell'articolo 55, comma 5, della legge 27 December 1997, No. 449", Gazzetta Ufficiale 24 July 1998, No. 171. 60

See A. de Guttry, Le operazioni militari all'estero gestite al di fuori del sistema delle organizzazioni o nel suo ambito: problemi giuridici e organizzativi per le forze armate italiane (Roma, 1996), pp. 104 et seqq. and N. Ronzitti, Rescuing Nationals Abroad Through Military Coercion and Interventions on Ground of Humanity (Dordrecht, 1985).

448

Jörg Luther

ever, need a specific justification under the general principles of the Constitution. This has not yet been clarified by constitutional court decisions. The general duty of political solidarity and the international obligations undertaken on the basis of the limitation-of-sovereignty clause could be sufficient to justify the sending of troops abroad together with armed forces of another country. However, joint operations do have to comply with the "generally recognised tenets of international law" (Article 10 (1) of the Constitution) and with the principle of war repudiation (Article 11 of the Constitution). Furthermore, operations under the command (and flag) of an international organisation must comply with the requirements of the sovereignty-limitation clause such as "conditions of equality with other states" and the existence of "a system that ensures peace and justice among nations" (Article 11). The Constitutional Court has not yet interpreted these requirements. It would seem that the political organs, in particular the Legislature, are granted a large margin of appreciation in this respect. Another open question seems to be whether operations may be undertaken jointly with countries which deny their citizens "the real exercise of democratic liberties" (Article 10 (3) of the Constitution). The general civic duty of the defence of the "patria" and the principle of popular sovereignty could be interpreted to contain a subsidiarity principle, which would impose further limits on the use of troops. Theoretically, the limitation-of-sovereignty clause could not only justify but even require the calling in of foreign troops when threats or violations to (international) peace and justice arise which can not be efficiently dealt with by the national armed forces.

III. Constitutional Powers 1. The Position of the Head of State The powers of the President of the Republic relating to the armed forces are provided for in Article 87 of the Constitution: (i) command over the armed forces, (ii) the presidency over the Supreme Council of Defence, (iii) the duty to declare the State of War and, (iv) the power to promulgate parliamentary laws and to enact decree-laws. The so called "high command" over the armed forces is a power which is inherited from the monarchy, but which is no longer effective. Orders of the President to the armed forces must be proposed and countersigned by the Minister of Defence who is politically responsible to Parliament. Such orders and the presidential signature for nominations of officers must preserve the impartiality

Military Law in Italy

449

of the armed forces and their democratic spirit, including the observance of the Constitution of the Republic.61 The Supreme Council of Defence examines "the general political and technical problems relating to the national defence" and "determines the criteria and establishes directives for the organisation and the coordination of all related activities" (Article 1 of the Law of 28 July 1950, No. 624). The Supreme Council advises the Government on defence and security matters prior to their approval by Parliament (Article (l)(a) of the Law of 18 February 1997, No. 25). The Council is composed of the highest officer of the armed forces (Capo di Stato Maggiore della Difesa), five ministers, and the President of the Government. The President of the Republic can decide to convene the Supreme Council for extraordinary sessions and can order the participation of the heads of the different forces, High Commissioners, and other persons of special competence (Article 3).62 The President has the duty to declare the State of War as determined by Parliament. This declaration must be made for purposes of international law if the animus bellandi is not otherwise sufficiently expressed. Should the parliamentary decision violate international law and/or Article 11 of the Constitution, the prevailing opinion holds that the President should refuse to issue the declaration and perhaps even resign. The decree-laws adopted by the government in cases of extraordinary necessity and urgency (Article 77 of the Constitution) are signed and enacted by the President if they do not amount to an obvious violation of substantive constitutional or international law.

2. The Powers of the Government The Council of Ministers is composed of the President of the Council of Ministers and the individual ministers who have been nominated by the President of the Republic on the proposal of the President of the Council of Ministers. The Council determines the general policy (politica generale, Article 95 of the Constitution) and the general aspects of administrative action (Article 2 Law No. 400/ 1988). The Council adopts decisions on matters of defence and security if they concern the policies subject to the fiduciary relationship to parliament (Article 1 61

G. Motzo, Il comando delle Forze armate e la condotta dei regimi di emergenza nel sistema costituzionale italiano (Milano, 1957); G. De Vergottini, Indirizzo politico della difesa e sistema costituzionale (Milano, 1972). 62

See S. Labriola, Il Consiglio supreme di difesa nell'ordinamento (Milano, 1975).

costituzionale

italiano

450

Jörg Luther

of Law No. 25/1997). This may concern international missions, as well as activities of civil protection and police operations.63 The Council's decision to deploy the armed forces can be adopted by a decree-law (Article 77 of the Constitution). The President of the Council of Ministers has a special responsibility for the unity in political and administrative policies, the information of the President of the Republic and the Parliament and the - rarely used - power to address "directives" to the ministers. In the case of the Libyan missile attack on Lampedusa-Island (15 April 1986), the President of the Council of Ministers gave an order to the armed forces "to defend with all means at their disposal every part of the territory of the Republic from every possible threat of attack." The President of the Council of Ministers also possesses "high direction" over the intelligence services, including the "Servizio per le informazioni e la sicurezza militare" (SISMI) (within the Ministry of Defence) and the "Servizio per le informazioni e la sicurezza democratica" (SISDE) (also within the Ministry of Defence).64 The President of the Council of Ministers no longer supervises a special department for civil protection. The President is responsible, however, for coordination between the Minister of Defence and the other ministers (foreign affairs, internal affairs etc.), and he exercises control over the new National Office for the Civil Service ( Ufficio nationale per il servizio civile). In the case of the peace support mission to Albania, the President of the Republic nominated an "Extraordinary Commissioner of the Government" with the power to "coordinate the Italian support for the Albanian authorities regarding the social and economical reconstruction of the country". The Commissioner reported directly to the President of the Council of Ministers.65

3. The Participation of Parliament in the Decision to Deploy the Armed Forces The participation of Parliament in the decision to deploy the armed forces is explicitly guaranteed in the case of a declared "State of War" (Article 78 of the Constitution). The practical value of this instrument of participation appears

63

Art. 20 (2) (a) Decreto legislativo 30 July 1999, No. 300, "Riforma dell'organizzazione del Governo", Gazzetta Ufficiale 30 August 1999, No. 203. 64 Legge 24 October 1997, No. 801, "Istituzione e coordinamento dei servizi per le informazioni e la sicurezza e la disciplina del segreto di stato", Gazzetta Ufficiale 7 November 1977, No. 303. 65

Decreto del Presidente della Repubblica, 2 June 1997, "Nomina del generale di corpo d'armata in aus. Franco Angioni per le iniziative italiane di supporto all'Albania", Gazzetta Ufficiale 12 June 1997, No. 135.

Military Law in Italy

451

to be very limited. It has, however, given rise to controversies among constitutional lawyers which tend to apply its principle of participation even to minor situations of crisis and emergency.66 The mainstream interpretation of Article 78 is that all military actions which are qualified by international law as "war" need a declaration of the "State of War". This concept of "war" would include even all armed conflicts which are not prohibited by the "war repudiation clause", but has been derogated by the NATO and WEU treaties (by force of Article 11 of the Constitution). It could not apply to international policing missions and defence under Article 51 of the Statute of the United Nations. It is open to debate whether Article 78 also applies to internal conflicts, whether it applies to defensive measures against terrorist organisations, and whether it covers only traditional forms of violence or also new and unconventional forms of violent conflict (biological war, cyber war). Under Article 78, Parliament should confer only the "necessary", not "all" or "full" powers on the Government. Parliament must determine the end of the State of War under the same procedure of Article 78 of the Constitution. It is a subject of controversy whether the parliamentary decision must be given in the form of a legislative act, and whether it is subject to the emergency law-decreemaking power of the Government, or to the abrogation power of the people, or to the control of the Constitutional Court. The authorisation of the government is considered to be a special case of delegation. As far as the use of the armed forces without a declared State of War is concerned, Parliament must be involved if the decision to deploy the armed forces is taken on the basis of an international agreement. Parliament has the power to authorise the presidential ratification of international treaties "which are of a political nature". This applies not only to the NATO and WEU treaties (Article 80 of the Constitution).67 In the case of the mission to Sinai in 1982, this procedure was applied with respect to the agreements with the director of the MFO-forces. Today, parliamentary authorisation is given for the creation of permanent multinational forces and for agreements on military cooperation signed by the Minister of Defence.68 66

See Giardina, 'Commentario all'Artide 78', supra η. 58, p. 102; R. Toniatti and G. De Vergottini, in: Costituzione della difesa e stati di crisi (Roma, 1991), pp. 348 et seq., pp. 367 et seq. 67

See for example, Legge 30 June 1998, No. 229, "Ratifica ed esecuzione della convenzione tra gli Stati parte del trattato Nord Atlantico e gli altri Stati partecipanti al partenariato per la pace sullo statuto delle loro forze, con protocollo addizionale, fatto a Bruxelles il 19 giugno 1995", Gazzetta Ufficiale 15 July 1998, No. 163. 68

See for example Legge 14 October 1999, No. 398, "Ratifica ed esecuzione dell'accordo tra il Ministero della difesa della Repubblica italiana ed il Ministero della difesa della

452

Jörg Luther

The participation of Parliament in the decision to deploy the armed forces in other cases was, previously, a point of contention but is now wellestablished.69 By virtue of Article 1 of Law No. 25/1997, Parliament reaffirmed its prerogative to give its approval to all decisions of the Government (Council of Ministers) on defence and security matters prior to their implementation by the competent minister, including the decision to deploy the armed forces. The constitutional principle of the parliamentary form of government seems to justify not only a veto right of Parliament but also a right of co-decision. Normally, the co-decision takes the form of resolutions which take into account the decisions of the Government and its influence on international negotiations. Only in cases of emergency may the Government decide to deploy armed forces by adopting a decree-law even prior to the approval of the Parliament. Parliament, however, always has the power to not convert the decree into an ordinary law or to modify it. If Parliament does not convert the decree-law into an ordinary law, even in a modified form, within 60 days it has to be considered void ab initio, but the Government has no duty to resign. These procedures are quite flexible and always connected with permanent control activities. In the case of the mission to Albania, the Government combined the adoption of a decree-law with a request to authorise the signing of an agreement.70 In the case of Kosovo, Parliament obliged the Government to request a suspension of the bombing and authorised it to deploy the armed forces exclusively "for functions of logistical support, medical aid, and the protection of the humanitarian mission". This excluded any "military intervention on Yugoslavian territory."71

Federazione russa sulla cooperazione nel campo della difesa, fatto a Roma il 14 novembre 1996", Gazzetta Ufficiale 4 November 1999, No. 259; Legge 1 Aprii 2000, No. 106, "Ratifica ed esecuzione dell'accordo tra il Governo della Repubblica italiana, il Governo della Repubblica di Slovenia e il Governo della Repubblica ungherese sulla costituzione di una Forza terrestre multinazionale, fatto a Udine il 18 aprile 1998", Gazzetta Ufficiale 19 Aprii 2000, No. 99; for the difficulties of parliamentary control see G. Bruneiii, Strumenti e forme di controllo sugli accordi militari nella prassi parlamentare, in: G. Battaglini and L. Carlassare (eds.), Il controllo democratico degli impegni intemazionali (Padova, 1997), pp. 19 et seqq. 69

See P. Bonetti, Ordinamento 2000), pp. 169 et seqq.

della difesa nazionale e costituzione

italiana (Milano,

70

See S. Grassi, L'Italia e la Forza Multinazionale di Protezione in Albania, in: A. De Guttry and F. Paganetto (eds.), La crisi albanese del 1997 (Milano, 1999), pp. 271 et seqq. 71

Criticai Bonetti, Ordinamento della difesa nazionale e costituzione italia', supra η. 69, pp. 180 et seqq; see Camera dei Deputati, Resolution No. 6-00037 approved on 13 April 1999, .

Military Law in Italy

453

4. The Functions of the Minister of Defence The Minister of Defence is responsible for the Ministry of Defence, the functions of which must be specified by parliamentary legislation (see Article 95 (3) of the Constitution). After the organisational reform of the Government, the Ministry has the following general tasks and functions: "defence and security of the State, military policies and participation in peace supporting missions, participation in international organs which perform sectoral, general, and operative planning for the armed forces and for joint units, and planning for industrial policy concerning defence" (Article 20 of the Law Decree of 30 July 1999, No. 300).72 The so-called "technical-operative department" within the Ministry is responsible for the following tasks: "defence and security of the State, the national territory, and the lines of sea and air communication, general and operational planning for the armed forces and joint units including the attendant technicalfinancial programs, participation in peace support missions, including multinational missions, participation in international and European organs which are competent for defence and military security, to take decisions affecting the national defence, relationships with the military authorities of other States, (...) interventions for purposes of environmental protection, support of activities of civil protection subject to the decision of the Government, and support of the safeguarding of free institutions and the wealth of the national community in cases of public disaster". According to the Law of 18 February 1997, No. 27, the Minister of Defence implements the decisions on defence and security matters which have been adopted by the Government, examined by the Supreme Council of Defence, and approved by Parliament. He gives the "directives concerning military policies, information and security activities, and technical-administrative activities". Directives for operations may be addressed to the Capo di Stato Maggiore della Difesa (CSMD). In matters of military administration and industry, they are addressed to the General Secretary of Defence ("Segretario Generale della Difesa"). Furthermore, the Minister of Defence decides on the general and operative planning and "participates [...] in all international and European organs which have powers over defence and military security matters or take decisions which affect national defence" (Article 1 of the Law of 18 February 1997, No. 27). By virtue of the principle of separation of political and administrative powers, the Minister of Defence has powers of control and direction, but does

72

Art. 20 Decreto legislativo 30 July 1999, No. 300, "Riforma dell'organizzazione del Governo ai sensi degli articoli 11, comma 1, lettera a), e 12 della legge 15 marzo 1997, No. 59", Gazzetta Ufficiale 20 August 1999, No. 203.

454

Jörg Luther

not directly exercise administrative functions. He can put questions concerning the interpretation of laws to the Council of State, which is a "legal-administrative consultative body" (Article 100 (1) of the Constitution). All drafts of governmental rules must be examined by the consultative sections of this supreme administrative court. The Minister of Defence is individually answerable to Parliament for the exercise of all his tasks which have been defined by law and for the respect of the resolutions adopted by Parliament.

5. The Role of the Military Leadership The role of the military leadership is defined by a law which specifies the democratic spirit clause of Article 52 of the Constitution. 73 The military leadership must recognise the hierarchical and disciplinary supremacy of the Minister of Defence. However, only the Capo di Stato Maggiore della Difesa (CSMD) is directly answerable to the Minister of Defence. The CSMD "is answerable for the planning, the predisposition, and the use of the armed forces as a whole". He or she "provides ... for the general financial planning and the joint operative planning (pianificazione operativa interforze) and defines the resulting technical and financial programs" (Article 3 (1) (a)). He "secures the relationship with the corresponding military authorities of other States" (Article 3 (1) (b)). The three Chiefs of Staff of the various service branches (Capo di Stato maggiore di Forza armata) make proposals concerning programs and planning. They possess the command over their respective forces and are answerable for their organisation and state of preparedness. Together with the General Secretary of the Ministry, and possibly the General Commander of the Arma dei Carabinieri, they compose the Committee of the Chiefs of Staff of the Armed Forces (Comitato dei Capi di Stato Maggiore delle Forze armate), which is a consultative organ for the CSMD. The members of this committee and other ordinary and extraordinary members compose the Supreme Council of the Armed Forces (Consiglio superiore delle Forze Armate). This is a consultative organ for the Minister of Defence which can give opinions on questions concerning military law, budget planning, and the preparedness of the armed forces. The CSMD and, if requested, other components of the military leadership take part in the sessions of the Supreme Council of Defence (Consiglio Su73

A comparative study prior to the recent reform legislation was made by C. Jean, L'ordinamento della difesa in Italia (Padova, 1989); on the questions faced by the reform legislation S. Cassese and C. D'Orta, (eds.), La dirigenza militare (Roma Cemiss, 1992).

Military Law in Italy

455

premo della Difesa). This body also gives advice on all matters relating to defence and can take decisions concerning the organisation and operations of the armed forces.

6. Parliamentary Control a. The Parliament's Powers to Control the Armed Forces Parliamentary control over the operations of the armed forces is exercised first of all by way of the ordinary control instruments (interrogazione, interpellanza), especially within the 4th Permanent Committees of both houses or by joint sessions of the 3rd and 4th (foreign affairs and defence). In the Gulf case, the committees created a common "crisis safeguard" (presidio di crisis). In the case of the Albania mission, the Government was obliged to give information every day to the joint presidencies of the committees on foreign affairs and defence.74 Special investigation or inquiry committees (Article 82 of the Constitution) can be authorised by statute even to inquire into issues which have been qualified by the Government as national secrets.75 In addition, Parliament has since 1985 developed special forms of budget control: At the annual budget presentation, the Minister of Defence must give a detailed report on issues such as "a) the strategic framework and the military implications of the situation of alliances, b) the evolution of the joint operational commitments, in particular the operational capacity and the preparation of the armed forces and their necessary adjustment, c) the estimates of expenditure (...), d) the distribution of the financial resources between operational and administrative commitments, e) the state of investment programs and of reorganisation and requalification measures for the military" (Article 2 of the Law of 18 February 1997, No. 25).

74

Bonetti, Ordinamento et seqq. 75

della difesa nazionale e costituzione italia', supra η. 69, pp. 176

Art. 12 Legge 24 October 1977, No. 801, "Istituzione e ordinamento dei servizi per le informazioni e la sicurezza e disciplina del segreto di Stato", Gazzetta Ufficiale 7 November 1977, No. 303: "Covered by state secrecy are acts, documents, notices, activities, and anything else, the dissemination of which would damage [...] the independence of the State with regard to other States and the relations with them, or the military preparation and defence of the State." See S. Labriola, Le informazioni per la sicurezza dello Stato (Milano, 1978), pp. 211 et seqq. During the 14th legislature, a proposal was made for the creation of an inquiry commission on human rights issues related to the Somalia mission (C 1285 Pisapia).

Jörg Luther

456

Parliament must be informed of expenditures arising from contracts for services and material supplies (Article 6 of the Law Decree of 28 December 1998, No. 496).76 The advice of the Permanent Parliamentary Committee is required for ministerial investment programs if they are financed through ordinary budget provisions, or a specific parliamentary law if they need further special funding (Article 1 of the Law of 4 October 1988, No. 436). The powers of control over military operations which are undertaken by the EU or the WEU could be delegated to these organisations. Inter-parliamentary cooperation with the European Parliament and the Parliamentary Assembly of WEU, NATO and CSCE has no specific legal framework so far.77 Parliament can enforce its control powers by way of a vote of non-confidence - including votes on particular individual ministers. An official who loses a vote of non-confidence is obliged to resign. b. Special

Forms of Parliamentary

Control

over the

Military

There is no special Parliamentary Ombudsperson for the armed forces. There is, however, a general right of petition to Parliament on "common necessities", which may include issues of parliamentary control. Parliament has enacted a law by which the right of all Members of Parliament to visit military structures and troop installations after giving a twenty-four hours notice is recognized.78 MPs may enter into direct contact with military personnel and civilian employees. If they want to access areas which are off-limits, they need a special authorisation by the Minister of Defence. This law applies also to military installations out of area and to installations of foreign troops and multinational units within the national territory, the latter only if an authorisation is given by the Minister of Defence within a twenty-day window. The details must be worked out by special international agreements.

76 Decreto Legislativo 28 December 1998, No. 496, "Razionalizzazione delle procedure contrattuali dell'Amministrazione della difesa, a norma dell'articolo 54, comma 10, della legge 27 dicembre 1997, No. 449". 77 See the critique expressed by S. Grassi, Il Cavallo e la Torre, Le relazioni tra U E e WEO dopo il trattato di Amsterdam, in: E. Letta (ed.), Le prospettive di integrazione tra UE e UEO (Roma, 1999), pp. 67 et seqq. 78

Legge 24 June 1998, No. 206, "Norme per le visite di parlamentari alle strutture militari", Gazzetta Ufficiale 2 July 1998, No. 152; details have been defined by the secondary source of Legge Decreto Ministeriale 30 June 2000, "Regolamento di attuazione dell'Artide 6, comma 1, della Legge 24 giugno 1998, No. 206 recante norme per le visite di parlamentari alle strutture militari", Gazzetta Ufficiale 19 October 2000, No. 245.

Military Law in Italy

457

c. Control by the Court of Auditors and Comparable Institutions According to Article 100 (2) of the Constitution, the National Court of Accounts (Corte dei conti) exercises ex post control on the budget management of the whole State, and preventive control with respect to the legitimacy of certain governmental measures. The Court takes part in INTOSAI and EUROSAI. It also participates in the proceedings of the Board of Auditors for NATO, and it was charged to control the accounts of the Parliamentary Assembly of the WEU (1998-2000). The Court has criticised the way the defence administration contracts out supplies and services.79 Various rules concerning military accounting are in need of reform.80

IV. The Structure of the Armed Forces 1. The Armed Forces and their Administration The "armed forces" are a complex organisation. They are a body without separate legal personality within the public administration, yet governed by special constitutional rules. According to Article 52 of the Constitution, the structure of this organisation must be based on a plurality of forces which have been traditionally identified as the three military bodies of Esercito, Marina militare and Aeronautica militare. They also include the Arma dei carabinieri, an armed security force which is administered by the Ministry of the Interior, and the " Guardia di finanza", which is an armed force administered by the Ministry of Finances.81 79

Corte dei conti-Sezione centrale di controllo - Collegi congiunti I e II - Pres. T. Lazzaro - Rei. A. Carosi - Deliberazione No. 12/2002/G, of 12 March 2002 - Relazione sui risultati dell'indagine relativa alla gestione degli appalti di lavori pubblici del Ministero della Difesa-Esercizi 1999-2001. 80 Regio Decreto 2 February 1928, No. 263, "Disposizioni di amministrazione e contabilità dei corpi istituti e stabilimenti militari"; Decreto del Presidente della Repubblica 5 June 1976, No. 1076, "Regolamento per l'amministrazione e la contabilità degli organismi dell'Esercito, della Marina e dell'aeronautica"; Decreto del Presidente della Repubblica 5 December 1983, No. 939, "Regolamento sui servizi in economia degli organi centrali e periferici del Ministero della difesa"; Decreto del Presidente della Repubblica 19 November 1990, No. 451, "Regolamento speciale concernente l'organizzazione ed il funzionamento dei servizi di commissariato dell'Esercito, della Marina e dell'Aeronautica". 81

See Legge 9 December 1941, No. 1383, "Militarizzazione del personale civile e salariato in servizio presso la Regia guardia di finanza e disposizioni penali per i militari del suddetto Corpo", Gazzetta ufficiale 30 December 1941, No. 306; Decreto Presidente della Repubblica 29 January 1999, No. 34, "Norme per la determinazione della struttura ordi-

458

Jörg Luther

The armed forces and the military administration must be distinguished, but not entirely separated from other branches of public administration. The legal order (ordinamento) of the armed forces (Article 52 of the Constitution) is a special legal order, but it is not autonomous. The special nature of this legal order derives from a specific principle of hierarchy, which applies not only to the officers, but extends also to the soldiers and their discipline (see infra VI.). The general constitutional principle of legality (legalità) of the public administration applies. Article 97 of the Constitution requires that the general rules of this legal order be predetermined by parliamentary statutes (infra VI.4.). Reform legislation has led to a reconsideration of the structure of the armed forces and their relations with the Ministry of Defence. The Ministry of Defence, a governmental organ of military administration distinct and separate from the armed forces, has been reorganised into two basic units, the so-called "technical-operative" and "technical-industrial" units.82 The technical-operative unit has control over the armed forces. The structure of the armed forces must conform to the principle of inter-force (joint) integration (Article 1 of Legislative Decree No. 464/1997). This rule separates the political and the technical command. The training of officers has been attributed to a new "Istituto Superiore di Stato Maggiore Interforze" (ISSMI), and the number of central and peripheral structures has been reduced, especially the regional commands (from 7 to 2).83 The technical-industrial unit includes "technical-administrative structures" dealing with "(...) administrative inspections, the administration of military and civil servants, the armament of the forces, telecommunications, computer sciences and advanced technologies, works and properties, commissariat and general services, conscription and recruitment, military health, activities of research and development, supply of materials and arms systems, study programs in the sector of new technologies for the development of the armament programs, planning for the area of public and private industries (...)" (Article 20 (2) (b) of Legislative Decree No. 300/1999). The thirty-six existing bodies (enti) falling under these headings have been subjected to the control of the new

nativa del Corpo della Guardia di finanza ai sensi dell'Artide 27, commi 3 e 4 della legge 27 dicembre 1997, No. 449"; other police forces such as the Polizia di Stato and the Corpo forestale are not qualified as "Armed Forces". 82

Art. 21 (2) Decreto Legislativo 30 July 1999, No. 300, "Riforma dell'organizzazione del Governo ai sensi degli articoli 11, comma 1, lettera a), e 12 della legge 15 marzo 1997, No. 59", Gazzetta Ufficiale 20 August 1999, No. 203. 83

Art. 2 Decreto legislativo 27 June 2000, No. 214, "Disposizioni correttive ed integrative del decreto legislativo 28 novembre 1997, No. 464, recante riforma strutturale delle Forze armate, a norma dell'articolo 9, comma 2, della legge 31 marzo 2000, No. 78".

Military Law in Italy

459

"Ispettorato logistico di forza armata" and of a new authority, the "Agency for Defence Industries". The Agency controls the economic efficiency of these bodies and suggests the disbanding and/or transformation of those bodies which do not reach the "capacity to operate in accordance with the criteria of an economically efficient management". 84 The integration of both units is brought about by the General Secretary of Defence, a position which is competent for the coordination of the General Directives {Direzioni Generali) of the Ministry. The General Secretary of Defence is subordinated to the CSMD with respect to all forces which belong to the operative unit, and in those functions of the administrative and industrial unit which answer directly to the Minister (Article 5 of the Law of 18 February 1997, No. 25). 2. Involvement of the Civilian Administration in the Procurement of Material and Supplies for the Armed Forces The procurement of material and supplies is the sole responsibility of the authorities who operate within the technical-industrial unit of the Ministry of Defence. The only case of an involvement of civilians is the participation of two judges of the Consiglio di Stato and the Corte dei Conti and two experts who "analyse the costs and accounts for industries" for a "Consulting Committee" which is presided over by the General Secretary of Defence. The Committee renders opinions with respect to contracts for armaments relating to international duties of cooperation or subject to the EC-rules.85

V. Soldiers' Rights and Duties 1. Restrictions of Fundamental Rights of Soldiers a. General Aspects In Italy, "fundamental" rights are all those constitutionally guaranteed rights which accrue to human beings by virtue of their being human, including the social and political rights set out in the first part of the Constitution. Restric84

Art. 4 Decreto Legislativo 28 November 1997, No. 459, "Riorganizzazione dell'area tecnico-industriale del Ministero della difesa, a norma dell'articolo 1, comma 1, lettera c), della legge 28 dicembre 1995, No. 549". 85

Art. 2 Decreto Legislativo 28 December 1998, No. 496, "Razionalizzazione delle procedure contrattuali dell'Amministrazione della difesa, a norma dell'articolo 54, comma 10, della legge 27 dicembre 1997, No. 449".

460

Jörg Luther

tions on freedoms and rights may arise from the general duties of discipline and honour imposed on those "citizens to whom public functions are entrusted" (Article 54 cost, infra 3.)· The possibility of further restriction of the rights of soldiers depends upon the interpretation of the provision of Article 52 of the Constitution, where it states that the military service "shall not prejudice a citizen's employment, nor the exercise of political rights." The traditional idea was that restrictions on the fundamental freedoms of soldiers were automatically justified by the special subjected status of the soldier or by the general priority of fundamental duties over fundamental rights. Up until 1978, restrictions were established by a governmental regulation which was not held to be subject to review by the administrative jurisdiction, but this practice was held to be unconstitutional according to constitutional academics.86 The need for a specific legal basis for restrictions on the fundamental rights of conscripts is based on Article 52 (2), for other kinds of servicemembers, it is based on Articles 23 and 97 of the Constitution. The law indicated in these provisions must define the principles justifying the restrictions, and can be integrated by regulations (infra VI.3). The mainstream interpretation is that restrictions on the fundamental rights of soldiers must be justified by specific needs of the military organisation, or by other specific constitutional values. As a substantive condition, restrictions must always safeguard the social rights of workers and the political rights of citizens ("democratic spirit"). The legislator and the Constitutional Court have set aside the restrictive interpretation whereby these would be the only rights respected, because that would indicate that the other civil rights could be automatically restricted. The Constitutional Court stated that the order of the armed forces is not a separate order "outside" of the scope of fundamental rights, but has to be "respectful of and to ensure the substantive and procedural rights of all citizens."87 "This guarantee of fundamental rights to which every single "military citizen" is entitled cannot be abrogated (...) even for the sake of the necessities of the military structure."88 The Law of 11 July 1978, No. 382, has provided the following principlenorm for the military discipline: "Military personnel are entitled to all the rights the Constitution of the Republic grants to citizens. In order to secure the fulfilment of the specific tasks of the armed forces, the statute imposes on military personnel limitations

86 See E. Rossi, Comment to Art. 52 section 3, in: Branca and Pizzorusso (eds.), 'Commentario della Costituzione', supra η. 26, pp. 196 et seqq. 87

Corte costituzionale, Judgement No. 278/1987.

88

Corte costituzionale, Judgement No. 449/1999.

Military Law in Italy

461

in the exercise of some of those rights and the observance of particular duties within the scope of the principles of the Constitution. " (Article 3). The abovementioned statute and military criminal codes (C.P.M.P.; C.P.M.G.) have set up restrictions on fundamental rights which can be justified by specific provisions of the Constitution or by the general democratic spirit clause. b. Political

Neutrality

of

Soldiers

Unlike civil servants, soldiers must practice "impartiality" (Article 97 (1) of the Constitution) and are "exclusively at the service of the Nation" (Article 98 (1) of the Constitution). For the special needs of impartiality in the exercise of powers related to security and justice, "the law can set limitations on the right to become a member of a political party in the cases of magistrates, career military in active service, agents of the police, and diplomatic and consular representatives abroad" (Article 98 (3) of the Constitution). No restriction has been placed on the right of military personnel to enrol in political parties, but soldiers may not express or distribute propaganda for political parties, associations, or candidates for political or administrative elections if they are in active service, in a military area, in uniform, if their military status is recognisable, or if they are attempting to communicate with military persons in uniform or in active service (Article 6 Law No. 382/1978). Military personnel are free to stand for political elections but they have to respect the general rule of incompatibility between parliamentary and executive functions (Article 1 Law of 13 February 1953, No. 60) and officers can not be candidate for local and regional representative bodies located within the territory under their command (Article 2 (3) Law of 23 April 1981, No. 154). The soldier has the right to a special remunerated leave for the time of the election campaign. The elected career military enjoys the right to an unremunerated leave. Conscripts elected to local mandates have the right to be commanded to a structure closed to the relevant territory and to receive special leave which allows for the fulfilment of the mandate (Article 6 Law No. 382/1978). Soldiers are authorised to exercise the right to vote within the municipality where they are serving.89 Italian citizens residing outside the national territory may now participate in national elections by mail, but military personnel only temporarily out of Italy are still not entitled to vote this way. 89

Art. 49 Decreto del Presidente della Repubblica 30 March 1957, No. 361, "Testo Unico per le elezioni per la Camera dei deputati"; Boursier Niutta, 'Elementi di Diritto Militare', supra η. 32, pp. 91 et seqq, criticises the factual compression of the right of soldier to express personal preferences.

462

Jörg Luther

Assemblies of military persons in a military area or in uniform for purposes other than the service are prohibited (Article 7 Law No. 382/1978). Participation in assemblies for purposes of corporate representation is obligatory (infra V.7). Outside of military grounds, assemblies may be held as long as the participants do not identify themselves as military personnel (Article 7 Law No. 382/ 1978) or carry arms (Article 17 of the Constitution). Seditious activities and expressions in public assemblies are punished by the General Criminal Code (Articles 654, 655 C.P.),90 and by the Military Criminal Code for Peace-time (Articles 182,183 C.P.M.P.).91 As long as their writings or speeches do not contain propaganda, soldiers are allowed to publish papers, hold conferences, and express their opinions in public. If they wish to make a public expression of an opinion related to government secrets or to any subject requiring discretion, they must obtain an authorisation (Article 9 (1) Law No. 382/1978). The release of unauthorised statements or declarations concerning military personnel or matters shall be punished with military confinement for not more than six months (Article 185 C.P.M.P.). The freedom of expression includes the right to possess books and newspapers even within military compounds (Article 9 (2) Law No. 382/1978). Neither the freedom of expression nor the right to present petitions (infra V.6) to Parliament implies any authorisation to disclose military secrets. c. Freedom of Association The Constitution grants freedom of association within three limitations. Associations may not be secret, they must not pursue "ends which are forbidden to individuals by criminal law", and they must not, "even indirectly, [pursue] political ends by means of organisations of a military character" (Article 18 (2)). Furthermore, the law containing principle-norms on military discipline forbids the exercise of the right to "constitute professional associations of a trade union character" or to "join trade unions" (Article 8 (1) Law No. 382/1978). Conscripts are allowed to join and to stay in trade unions, but may not be active in the trade union during duty hours, while in uniform, or while within a

90 91

Upheld by Corte costituzionale, Judgement No. 120/1957; 15/1973.

Art. 182 C.P.M.P.: "Any person subject to this code who stirs up discontent with military service or with performance of special duties in other persons subject to this code, shall be punished with military confinement for not more than two years."; upheld by Corte costituzionale, Judgement No. 30/1982; Art. 183 C.P.M.P.: Any person subject to this code who engages in seditious behaviour or utters seditious expressions in public [...] shall be punished with military confinement for not more than one year."; upheld by Corte costituzionale, Judgement No. 57/1984.

Military Law in Italy

463

military area (Article 8 (2)). Other kinds of associations constituted by military persons, including clubs, need to be authorised by the Minister of Defence (Article 8 (3)). The 1986 rules on military discipline make a further prohibition on joining associations "considered [to be] secret [or] incompatible with the duties deriving from the oath [of service]" (Article 31). When faced with the question whether it is reasonable to permit policemen to join trade unions (with no right to strike) and to forbid the same to the armed forces, the Constitutional Court upheld the prohibition on military trade unions on the grounds that "a declaration of the unconstitutionality [of this prohibition] would necessarily open up the way to the formation of organisations whose activities could be incompatible with the necessary internal cohesion and neutrality of the military order." The legal framework of the armed forces has to "ensure forms of protection of the fundamental rights of military persons as citizens and their collective interests, but not necessarily through the recognition of trade unions".92 d. Conscientious

Objection

The first legislation on conscientious objection (Law No. 772/1977) was subject to several interventions by the Constitutional Court in the form of decisions which recognised the constitutional value of rights of conscience by declaring unconstitutional the major duration of civil service and the right of tardy and total objectors not to be subject to a spiral of punishments.93 The Law No. 233/ 1998 has recognised a subjective right to conscientious objection which can be exercised only within sixty days after the receipt of the conscription notice. The right can not be exercised by persons who already possess a weapons license, who have already attempted voluntary enrolment, or who have been sentenced for crimes related to violence and the illicit use of arms. The conscientious objection to military service must be founded on specific reasons, but there cannot be an examination of the conscience of the objector to confirm the given reasons. If the right is exercised, the objector's duty to military service is converted into a duty of civilian service carried out for the same period of time and under equivalent institutional conditions, including the subjection to civil disciplinary power and the recall to service in cases of public calamities. The objector's refusal to fulfil the civilian service and the refusal of persons non admitted to the civilian service, including trady objectors, to fulfil the mili92

Corte costituzionale Judgement No. 449/1999 which disagreed with the opinion given by the Consiglio di Stato. The question of compatibility with Art. 11 ECHR and Art. 5 of the Revised European Social Charter has not yet been addressed.

93

Corte costituzionale Judgements No. 470/1989, 467/1991 (and others).

464

Jörg Luther

tary service is sentenced by the ordinary criminal jurisdiction with prison from 6 to 24 months (Article 14 (1) and (2)), even if the refusal is motivated by reasons of conscience. 94 In cases of total objection to military service not motivated by conscience, the period of imprisonment must at minimum equal the period of the obligatory service (Article 14 (5)).95 In all cases, expiation discharges from the military service. Persons involved in such objection proceedings may at any time (including after sentencing) request to be admitted to civil or military service and the assignment - to be decided within a three-month term - obviates the crime. After the abolition of the existing conscription in peace-time, the law will apply only more to a conscription deliberated for the cases of war or of international crisis management.

e. Equal Treatment Insofar as the attribution of missions and the assignment of transfer to positions within the administrative structure are concerned, all kinds of discrimination, in particular for political or ideological reasons, are forbidden (Article 17 Law No. 382/1978). The traditional restrictions on access to a military career for women were removed by the Law of 20 October 1999, No. 380 ("Delegation to the Government for the Institution of Voluntary Military Service for Women"). During pregnancy and for up to seven months afterwards, female personnel are excluded from "dangerous, arduous, and insalubrious tasks". The minimum height for recruitment of ordinary soldiers has been fixed at 1,65 m for men and 1,61 m for women (officers of the Arma dei Carabinieri must be 1,70 m for men and 1,65 m for women). For a transition period of 3 years, the age limit for the recruitment of women has been set at three years above that for men. A quota of 3 0 % women has been set for the first round of recruitment of short-term (in ferma breve) volunteer servicemembers. 96

94

Upheld by Corte costituzionale, Judgement No. 271/2000. Uphold by Corte costituzionale, Judgement No. 223/2000. 96 Legge 20 October 1999, No. 380, "Delega al Governo per l'istituzione del servizio militare volontario femminile"; Decreto Legislativo 31 January 2000, No. 24, "Disposizioni in materia di reclutamento su base volontaria, stato giuridico e avanzamento del personale femminile nelle Forze armate e nel Corpo di guardia di finanza, a norma dell'articolo 1, comma 2, della legge 20 ottobre 1999, No. 380", Decreto del Presidente del Consiglio dei Ministri 16 March 2000, No. 112, "Regolamento recante modifiche al Decreto del Presidente del Consiglio dei Ministri 22 luglio 1987, No. 411, relativo ai limiti di altezza per la partecipazione ai concorsi pubblici"; for further rules see Stato Maggiore dell' Aeronautica SMA-ORD-007, "Le relazioni interpersonali tra uomini e donne nell'aeronautica militare", , 2001. 95

Military Law in Italy

465

The directive regarding "interpersonal relations between man and women within the air force" 97 has been criticised because of its implicit exclusion of homosexual relations. The legal questions whether homosexuals have to be considered unfit foe "sexual at the health examination and whether homosexual practices have to considered always incompatible with discipline have not yet been defined by jurisprudence. The political debate on the future of the voluntary recruitment is facing the question if declared homosexuals as well as foreigners should be called to join the Armed Forces. /

Other Fundamental Rights and their Restriction

The following fundamental rights are restricted in the Italian military order: Freedom of religion in terms of the freedom not to participate in religious services: soldiers may be ordered to participate in religious functions "in cases of service held within military areas" (Article 11 Law No. 382/1978). The service regulations provide that soldiers must participate in "holy mass" (Catholic rite) on the occasion of military ceremonies, without any right to conscientious objection.98 The constitutional right to religious freedom should include the right to participate in other spiritual services and to receive individual spiritual assistance, but the only chaplain service exercised by military chaplains financed by the defence budget is Catholicism.99 The accords with the different religious confessions have recognised the right to have access to local religious services out of the military area in a way compatible with the service needs.100 The right to personal liberty (Article 13) can be restricted by special military penalties and specific disciplinary measures, especially by the so called "rigourous consignment" (consegna di rigore) (infra VII.l). It was not until 1994 that

97 The directive of 14 December 2001, SMA-ORD-007 has been subject to a question presented by the member of the Camera dei deputati Franco Grillini No. 3-00691. 98 Art. 139 Stato Maggiore della Difesa, S.M.D. - G - 106, 1973, "Regolamento sul servizio territoriale e di presidio". 99 See Art. 35 Decreto del Presidente della Repubblica 18 July 1986, No. 545, "Approvazione del regolamento di disciplina militare ai sensi dell'Artide 5, primo comma, della legge 11 luglio 1978, No. 383", for the agreements between the State and the Roman Catholic Church and the various non-catholic confessions, and the varius sources of law defining the status of Military Chaplains see M. De Luca, in: S. Riondato (ed.), Il nuovo ordinamento disciplinare delle Forze armate (2nd edn, Padova, 1995), pp. 258 et seqq. 100

The recent governmental project of a law on religious freedom, Disegno di legge "Norme sulla libertà religiosa e abrogazione della legislazione sui culti ammessi" (Atti Camera dei Deputati n. 2531) delegates the Ministers to define the way how to exercise the right to religious services, the respect for religious rules on food and for the prohibition to work on festivities within the Armed Forces.

466

Jörg Luther

the death penalty - partially supported by Article 27 (4) of the Constitution was removed from the Criminal Code even for war-time.101 In war-time, military personnel may marry "per procura" (Article 111 codice civile). But various laws provide for temporary limitations on the rights of voluntary soldiers to get married prior to or during the first three years of a military career.102 The Constitutional Court declared that several laws regulating access to a military career which required that the applicants be childless were unconstitutional.103 Restrictions on freedom of movement (Article 16 of the Constitution) can be imposed for reasons of service, even outside designated military areas. "For the sake of indispensable needs of the service, movement from the place of service may be forbidden or limited to specific times or distances. Temporary emigration must be authorised" (Article 12 Law No. 382/1978).104

2. Legal Obligations of Soldiers Legal obligations of soldiers may differ from those of civil servants, but must always be justified by general or specific purposes of the service. The general duties of soldiers are specifications of the citizen's duty of loyalty to the Republic and the servant's duties of discipline and honour (Article 54 of the Constitution). Unlike other obligatory services (Article 23 of the Constitution), the extent of the obligations of military service must be defined by statute (Article 52 (2) of the Constitution). The specification of these obligations is made by the provisions of the criminal codes, especially the C.RM.R and the C.P.M.G., the law containing principle-norms on military discipline (Law No. 382/1978), and the Regulation on Military Discipline (Regolamento di disciplina militare) of 1986, a governmental source of law authorised by Article 5 Law No. 382/1978, and a large number of manuals and service regulations without specific legal basis {infra VI.3). The co-ordination of these sources of law in a rationalised system with foreseeable sanctions and practical remedies is a permanent task for the ιοί Legge 13 October 1994, No. 589 "Abolizione della pena di morte nel codice penale militare di guerra". 102 See Art. 4, Legge 10 June 1964, No. 447; Art. 1, Legge 8 October 1977, No. 464; Art. 17 Ugge 1 February 1989, No. 53. 103 104

Corte costituzionale, Judgement No. 332/2000.

Until 1997, no Italian citizen subject to the duty to fulfil military service could have a passport without authorisation from the Ministry of Defence: Art. 3 (f) Legge 21 N o vember 967, No. 1185, Gazzetta Ufficiale 18 December 1967, No. 314.

Military Law in Italy

467

military and administrative judicature.105 The Constitutional Court declared unconstitutional the provision that soldiers may not claim ignorance of their duties (ignorantia legis non excusat, Article 39 C.P.M.P.) even in cases in which the soldiers had had no instructions regarding the relevant regulations, especially the service regulations.106 The law containing principle-norms on military discipline declares that "absolute fidelity to the republican institutions is the basis of the duties of a servicemember", and defines the general duties of soldiers related specifically to military discipline, to the duty to wear the uniform during service and, exceptionally, even during hours of leave (Article 5 (5) and (6)), and to the duty of political neutrality (supra V.l). These duties are specified by the Regulation on Military Discipline (Regolamento di disciplina militare) of 1986, a governmental source of law authorised by Article 5 Law No. 382/1978. The Regulation distinguishes the general duties of all soldiers from the specific duties of superiors and inferiors and from other specific conduct and service duties. The most important general duties of soldiers are indicated by their oath (Article 9 Regulation on Military Discipline 1986): "By the oath, the servicemember of whatever rank makes a solemn commitment to operate for the fulfilment of the institutional tasks of the armed forces with absolute fidelity to the republican institutions, with discipline and honour, with a sense of responsibility and conscientious participation, without sparing physical, moral, or intellectual energies, facing, if necessary, even the necessity of sacrificing his life." Another general clause describes the obligations related to respect for military office and position within the hierarchical order (grado): "All servicemembers must avoid conduct which could prejudice the exercise of their functions or violate the prestige and the neutrality of the Institution; they must fulfil their tasks in a way that encourages respect for the office by others (Article 10 (2) Regulation on Military Discipline 1986). Among the other general duties of soldiers the Regulation of 1986 specifies: the duty to respect the President of the Republic (Article 11) and the military hierarchy (Article 12), including the need to use the chain of command for all service and disciplinary communication,

105

See Corte costituzionale, Judgement No. 263/2000 which upheld the crime of "infringement of orders" provided by Art. 120 C.P.M.P.: "Any military person standing guard or on duty who leaves his post or fails to obey orders shall be punished with military confinement for up to one year". 106 Corte costituzionale, Judgement No. 61/1995.

468

Jörg Luther

the duty to act on one's own initiative, especially if orders or directives have not been received or can not be executed (Article 13), the duty to uphold correctness and a sense of responsibility (Article 14), the duty to conserve and promote one's physical and intellectual capacities, including through participation in cultural activities and sports (Article 15), the duty to respect and conserve the specific sense of solidarity based on the ethical and historical traditions of the institution ("spirito di corpo", Artide 16), the duty to present a dignified and decent exterior (Article 18), including the proper wearing of the uniform (Article 17), the duties to protect secrets and exercise discretion (Article 19), the duty to take care of military property (Article 20). Non-compliance with these general duties can be qualified as a crime against allegiance and against the military defence of the country, including treason (Articles 77-85 C.P.M.P.), military espionage, and disclosure of military secrets (Articles 86-96 C.P.M.P.), or it could be specified as a crime against the military service, for example cowardly conduct (Article 137 C.P.M.P.), drunkness on duty (Article 139 C.P.M.P.), absence without leave or desertion (Articles 147-150 C.P.M.P.), mutilation and malingering (Articles 157-163 C.P.M.P.), destruction, disposal, purchase, withholding, or spoilage of military property (Articles 164-172 C.P.M.P.). Other specific duties of subordinates are: the duty of obedience (Article 25) (infra, VI.), the duty to carry out specific charges (consegna, Article 26), the duty to give the military salute to all superiors (Article 27), the duty to reveal one's rank and name when communicating with superiors (Article 37 (2)). Individual disobedience (Article 173 C.P.M.P.), collective revolt (Article 174 C.P.M.P.), mutiny (Article 175 G.P.M.P.), seditious activities, demonstrations or shouts (Articles 183, 184), and military gatherings (Article 185 C.P.M.P.), as well as individual insubordination to superiors in connection with violence, threats, or insults (Article 186-189 C.P.M.P.), duels (Articles 200-211 C.P.M.P.), and incitement to commit military crimes (Articles 212-214) are all military crimes related to these duties. The violation of duties inherent to specific charges (Articles 118-123 C.P.M.P.) is considered a crime against specific service interests. The violation of the duties sub 3) and 4) is a disciplinary infraction. Among the specific conduct and service duties relevant only for disciplinary sanctions, the Regulation of Discipline 1986 lists:

Military Law in Italy

469

the duty to maintain composure {contegno), including obligations to avoid indecent speech, to help people in danger or specific need, to consign lost property, to avoid drugs and excessive alcohol, and to respect religious feelings (Article 36), the duty to respect a sense of order (Article 37), the duty to use the Italian language (except in services of international character) (Article 43), the duty to respect the service timetable (Articles 44-47; infra V.5), the duty to take housing within the place of service (Article 48), with the prohibition of possession of instruments of telecommunication (apparecchi trasmittenti o ricetrasmittenti) (Artide 49), the duty to communicate impediments (illness, delays) to a superior (Article 52). The legal obligations of soldiers in multinational peace-support missions are furthermore specified by international law, including the international humanitarian law conventions signed by Italy (infra VII.2.h.). Even if they have immunity from the host states' jurisdiction, an Italian contribution to international law doctrine holds that Italian soldiers employed in peace-support missions must respect the laws of the host state.107 Military doctrine has further defined general "norms of conduct" (1994) towards the local population, the fighting parties, and the means of communication.108 Soldiers are obliged to take into consideration local customs, to respect the local population and their goods, to be impartial, determined, sincere, and friendly. They are not allowed to express opinions related to controversial issues, to have intensive social relations with the population or to react to provocations.

3. The Power of Command and the Duty to Obey The obligation to obey orders is stated in Article 4 Law No. 382/1978: "Absolute fidelity towards the institutions of the Republic is the basis of the duties of a servicemember. The servicemember observes all the norms pertaining to discipline and to hierarchical relations with a sense of responsibility and conscientious participation. In personal relationships he must always respect the equal dignity of all military personnel. Orders must, in conformity with the existing rules, pertain to discipline, relate to the service, and may not exceed the 107

See N. Ronzitti, "Lo status delle Forze armate", supra, n. 36, p. 91.

108

Manuale per le operazioni di mantenimento della pace CSME 8 November 1994, D.

470

Jörg Luther

institutional tasks. Servicemembers who receive an order obviously directed against the institutions of the State, or the execution of which obviously would constitute a crime, are duty-bound not to execute the order, and to inform responsible superiors as soon as possible." The Regulation on Military Discipline of 1986 states precisely: "1. The servicemember must execute orders with alacrity, a sense of responsibility, and precision, within the limits of the relevant norms of the laws and regulations, and observing with scrupulousness the specific charges and the service dispositions. He is under the especial duty to a) avoid making any remarks except those necessary for the correct execution of the order, b) obey orders received from a superior not in his immediate chain of command and inform his direct superior of these orders as soon as possible, and c) make known to the direct superior any contradiction involved in orders received from another superior, giving precedence to the latest order received, and informing as early as possible the superior from whom he received the earlier order. 2. The servicemember who receives an order he considers contrary to established rules and norms should vigorously communicate his reservation, in a spirit of loyal and active participation, to the superior who has given the order, but he is still obliged to execute the order in the case that it is confirmed by that superior." (Article 25 (1)). The infringement of guard orders or other specific orders (consegna) is a specific military crime (Article 120 C.P.M.P.) as well as insubordination in connection with violence,109 threats, or insults (Article 186, 189 C.P.M.P.)110 against a superior. Disobedience to orders related to the service and discipline is a subsidiary case of military crime (Article 173 C.P.M.P.).111 Military jurisprudence holds that soldiers have no right to disobey orders given in a rude and uncivil manner, but they can disobey orders lacking the written form prescribed by law or which do not pertain to service or discipline issues (see infra VII.).112 109 Art. 43 C.P.M.P.: "Concept of violence: For the purpose of the military criminal law, violence includes murder, either attempted or actual, personal injury, battery, cruelty, and any attempt to inflict injury with a weapon." no Provisions partially struck down by the Constitutional Court Judgements No. 26/ 1 9 7 9 ; 1 0 3 / 1 9 8 2 ; 1 7 3 / 1 9 8 4 ; 1 0 2 / 1 9 8 5 and finally reformed by Legge No. 6 8 9 / 1 9 8 5 . 111 Art. 173 C.P.M.P.: "Any person subject to this code who refuses or fails to obey or is late in obeying the order of a superior related to service or discipline shall be punished with military confinement for not more than one year. If the offence was committed during service or on board a ship/aircraft, the term of military confinement shall range from six months to one year; this term may be extended to five years if the offence was committed during a fire/epidemic or another situation of serious danger." 112

If the superior exercises a specific power to derogate from laws and regulations, the

Military Law in Italy

471

4. Social Rights of Soldiers and their Families As a matter of principle, soldiers may claim social rights recognised by the Constitution and by the relevant laws, including those enacting the (Revised) European Social Charter. They enjoy the same fundamental social rights to work (Article 4), to health service (Article 32), to protection of work (Article 35 et seqq.), to social protection (Article 38), etc., as private workers and civil servants, but specific institutional needs of the armed forces justify a differentiated configuration of those rights and major restrictions on the connected freedoms. For this reason the ordinary legislation on social rights does not apply to soldiers.113 The military is exempted from the general trend to assimilate public and private labour law, and soldiers enjoy significant benefits, for example the provision of an early retirement (2008: 60 years).114 The law containing principle-norms on military discipline (Article 8 Law No. 382/1978) excluded explicitly any right of soldiers to strike - in accordance with Article 40 of the Constitution - or to defend their social rights by joining trade unions (see supra 2.). The Regulation on Military Discipline 1986 stated the duty of superiors to secure respect for social rights to each subordinate. The superior must provide for military education and professional training, take care of the soldiers' "conditions of life and welfare", and ensure respect for the existing norms pertaining to security and prevention which were made for the purpose of safeguarding the soldiers' physical integrity (Article 21). Special services governed by specific laws and internal regulations or conventions with civilian facilities provide for elementary needs like free food, free clothing, fair-price housing, etc., but also for various cultural needs.115

order must be motivated. For details see R. Venditti, I reati contro il servizio militare e contro la disciplina militare (4th edn, Milano, 1995), pp. 206 et seqq. 113 See especially Art. 37 Legge 20 May 1970, No. 3000, "Norme sulla tutela della libertà e dignità dei lavoratori, della libertà sindacale e dell'attività sindacale nei luoghi di lavoro e norme sul collocamento", Gazzetta Ufficiale 27 May 1970, No. 131 abrogated by Art. 55 section 2 Decreto legislativo 3 February 1993, No. 29, "Razionalizzazione dell' organizzazione delle amministrazioni pubbliche e revisione della disciplina in materia di pubblico impiego [...]", Gazzetta Ufficiateli December 1993, No. 546. 114 For the rules on retirement see C. Corbinelli, Pensioni e trattamento di quiescenza, in: Elementi di diritto amministrativo militare, Quaderni della Rassegna dell'Arma dei Carabinieri 3.2001, pp. 289 et seqq. 115 See Legge 25 January 1962, No. 26, "Norme sul servizio vestiario dell'Esercito, della Marina e dell'Aeronautica", Gazzetta Ufficiale 15 February 1962, No. 41; Legge 22 December 1989, No. 419, "Riordinamento del servizio mensa delle Forze armate", Gazzetta Ufficiale, 15 February 1990, No. 41 (under conditions of reciprocity, canteen service is extended to foreign soldiers); Art. 43 Legge 23 December 1994, No. 724, "Misure di

472

Jörg Luther

Soldiers do enjoy institutional representation, and these bodies are corporate guardians of the soldiers' social rights. They deliver opinions, proposals, and requests on questions related to pay, pensions, working time, and the quality management of the various services {infra V.7).116 The Constitution codifies a right to health, including medical care, for all citizens (Article 32). Cost-free care, however, is guaranteed only to "indigents", i.e. persons who are unable to meet the costs of the necessary care. The realisation of this right is the task of the National Health Service, which guarantees equal standards of service throughout the whole country, including medical care for foreigners and medical care abroad.117 Nevertheless, the basic law of the National Health Service mentions a Special Military Health Service as an administration reserved to the central State with a legal framework based on ministerial regulations and conventions with the National Health Service structures.118 The task of that service is to "check the fitness of citizens for military service, to protect the health of military personnel, and to remove unfit military personnel from the service, if necessary".119 The protection of health includes

razionalizzazione della finanza pubblica"; For the so called "organisms of social protection" like clubs, etc., see Fausto Bassetta, protezione sociale militare, in: 'Elementi di diritto amministrativo militare', supra η. 114, pp. 273 et seqq. 116 Art. 19 Legge No. 382/1978, integrated by Decreto Legislativo 12 May 1995, No. 195, "Attuazione dell'Artide 2 della legge 6 March 1992, No. 1992 in materia di procedure per disciplinare i contenuti del rapporto di impiego del personale delle Forze di Polizia e delle Forze armate", Decreto Legislativo 31 March 2000, No. 129, "Disposizioni integrative e correttive al decreto legislativo 12 maggio 1995, No. 195, in materia di rapporto di impiego del personale delle Forze di polizia e delle Forze armate, a norma dell'articolo 18 della legge 28 luglio 1999, No. 266". 117

See for further details P. Caretti, I diritti fondamentali (Torino, 2002), pp. 395 et seqq. Art. 6 (1) (ν) + (ζ) Legge 23 December 1978, No. 833, "Istituzione del servizio sanitario nazionale"; the legal framework of this supplementary service is based on ministerial regulations, first of all on the Royal Decree 17 November 1932, "Regolamento sul servizio sanitario militare territoriale", which was not published by the Gaietta Ufficiale, but rather by the Ministry of War in 1933. Special laws have been enacted for the economical treatment of civil personnel and of nuns working for the military health service. Several reform bills have been discussed, but not approved by Parliament, and only partially enacted by the Decreto Interministeriale 31 October 2000, "Individuazione delle categorie destinatarie e delle tipologie delle prestazioni erogate dalle strutture sanitarie militari", Gazzetta Ufficiale 20 November 2000, No. 271; on reform issues see L. Manzi, La Sanità Militare. Prospettive per l'attuazione dei contenuti normativi attualmente in itinere e linee guida per l'efficace razionalizzazione interforze delle strutture e delle competenze nel rispetto dei vincoli posti dalle norme di legge e dalle esigenze operative, CASD paper (Rome, 1999). 118

119

Art. 1 (1) Regolamento sul servizio sanitario militare territoriale.

Military Law in Italy

473

hygiene and prophylaxis and the supply of such pharmaceutical,120 diagnostic, and therapeutic assistance in ambulatory, day-hospitals, and military hospitals "which are considered of special interest by the administration of defence", or could be special subjects of research for the "Centro Studi e Ricerche della Sanità Militare" in Rome. The service's priorities of care are: 1) soldiers who have been called up for duty, along with their families, and 2) military and civilian personnel of the Ministry of Defence, whether active duty or retired, for any illness or injury related to or resulting from service activities. The service may be extended to 1) military and civilian personnel, whether active duty or retired, complaining of problems not related to service activities, 2) spouses, parents, or siblings of military or civilian personnel, 3) personnel of the Carabinieri, and, in accordance with specific conventions, the personnel of the Italian Red Cross and religious orders acting with the armed forces, 4) personnel of public information and security services, 5) foreign military personnel in service in Italy, along with their parents under conditions of reciprocity, 6) members of constitutional organs, in accordance with specific conventions, 7) "Italian or foreign citizens who need, for reasons of opportunity or security, medical care in 'protected' areas, if authorised by the Minister of Defence", 8) "Italian or foreign citizens in cases of special scientific, clinical or humanitarian interest, individualised on the basis of ad hoc determinations of the Administration of Defence [...]", 9) citizens recovered for emergency reasons upon request of the territorial system of health emergencies, 10) "personnel of the police force or other civil administrations, limited to the military health structures operating in the field during missions and operations out of area and interventions of civil protection." In the cases of the missions to Lebanon and Mozambique, the health service was occasionally extended to the native population. The health service is staffed by medical corps integrated within the various service branches. Medical officers can be employed on the basis of a contract, but are still subordinated to the special hierarchy of the military health service. The medical officer can give orders to soldiers subject to his practice, and is obliged to promote disciplinary proceedings if the soldier violates the duty to conserve and improve his own physical and psychological fitness (for example by using drugs).121 There are no special rules concerning liability for medical malpractice in the armed forces. 120 There is a special therapeutic handbook (Prontuario terapeutico di base per uso dei servizi sanitari militari), but the medical officers have a free choice of therapies and foreign pharmaceuticals. Logistics for the service are organised by the Stabilimento Chimico-farmaceutuico militare, Florence. 121 This duty is fixed by the laws regulating the status of the different categories. For the special case of use of drugs by military personnel, see V. Poli, Assunzione di sostanze

474

Jörg Luther

5. Rules Governing Working Time According to Article 36 (2) of the Constitution, "the maximum working day is fixed by law". According to Article 36 (3), workers have a "right to a weekly rest day and paid annual holidays" which cannot be waived. In 1990, the Legislature fixed a 36 hour limit (+ 2 hours of obligatory overtime) on the work week of professional soldiers, but stated at the same time that the principle of "continuous" or "permanent service" held for all professional military personnel. The Legislature also ensured that special ministerial provisions could be made for missions abroad.122 The reform legislation provided furthermore that volunteers on non-permanent service have a right to an ordinary leave of 28 days per annum, and to a further 4 days for relaxation.123 The Regulation on Military Discipline 1986 stated furthermore that the administrative determinations of shifts and service hours must provide for reasonable times of rest (Article 44), leave (libera uscita, Article 45), special permissions (which can be granted for a maximum of 24 hours), and special leaves (which can be granted for more than 24 hours, Article 46).124 The law defining the competencies of the bodies of institutional representation required a special hearing procedure for the determination of the maximum length of the work week, etc. (infra V.7). The results of this hearing were implemented through a presidential decree into a regulation which provides rules for compensation for overtime work in money or time off, defines the (national and local) festivities, extends ordinary leave (licenza ordinaria) from 30/32 days (within the first 3/15 years) up to 37/45 days (after 15/25 years), and clarifies the limits for special leave on private grounds or for health reasons.125 Similar provisions were enact-

stupefacenti, in: V. Poli and V. Tenore (eds.), Iprocedimenti amministrativi tipici e il diritto di accesso nelle Forze Armate (Milano, 2002), pp. 445 et seqq. 122 Art. 10 Legge 8 August 1990, No. 231, "Disposizioni in materia di trattamento economico del personale militare". The Minister is authorised to establish particular rules for missions abroad. 123 Art. 13 Decreto Legislativo 8 March 2001, No. 215, "Disposizioni per disciplinare la trasformazione progressiva dello strumento militare in professionale, a norma dell'articolo 3, comma 1, della legge 14 November 2000, No. 331". 124 See "Direttiva sull'orario di lavoro e straordinari", Stato Maggiore dell'Esercito Prot. 2348/02/DP-CH del 23 Aprii 1999; Stato Maggiore Aeronautica Prot. SMA/102/13572/ F3-1/2 del 31/07/2000); Stato Maggiore della Marina 3° Rep.P.G./Pianificazione Generale e Finanziaria, edizione 2001. 125 Decreto del Presidente della Repubblica 31 July 1995, No. 394, "Recepimento del provvedimento di concertazione del 20 luglio 1995 riguardante il personale delle Forze armate (Esercito, Marina e Aeronautica)", Gazzetta Ufficiale 22 September 1995, No. 222 (suppl. No. 114).

Military Law in Italy

475

ed at the same time on the basis of a collective labour agreement made with the trade unions of the Arma dei carabinieri and the Guardia di Finanza,126 A law provides that in cases of field exercises and operations exceeding 48 hours, the rules relating to working time and compensation for overtime do not apply. Such prolonged operations normally cannot exceed 12 hours a day and 120 days a year, and require special compensation.127 This compensation cannot be combined with the other kind of special compensation in specie (indennità di missione), which is the preferred compensation for international missions.128 The law-decree for the mission "Enduring Freedom" emphasised that the ordinary dispositions regarding working time do not apply to this kind of mission.

6. Legal Remedies, in Particular Rights to File a Complaint The following legal remedies are granted: a) b) c) d)

Complaint (reclamo) to a superior or to the Minister of Defence, Petition to Parliament, Civil actions for the defence of subjective rights, Demand for judicial review of administrative acts related to questions of status, e) Demand for review (istanza di riesame) of disciplinary sanctions (infra Vll.l.f), f) Hierarchical recourse for disciplinary sanctions (infra VII. 1 .f.). The right to file a complaint is guaranteed indirectly by Article 39 of the Regulation of Military Discipline 1986.129 Every military person can demand an 126 Decreto del Presidente della Repubblica 31 July 1995, No. 395, "Recepimento dell' accordo sindacale del 20 luglio 1995 riguardante il personale delle Forze di polizia ad ordinamento civile (Polizia di Stato, Corpo di polizia penitenziaria e Corpo forestale dello Stato) e del provvedimento di concertazione del 20 luglio 1995 riguardante le Forze di polizia ad ordinamento militare (Arma dei carabinieri e Corpo della guardia di finanza)", Gazzetta Ufficiale 22 September 1995, No. 222 (suppl. ordinario No. 114); a new agreement was signed on 13 May 2002. 127 Art. 3 Legge 29 March 2001, No. 86, "Disposizioni in materia di personale delle Forze armate e delle Forze di polizia", Gazzetta Ufficiale 2 February 2001, No. 77; the Council Directive 93/104 EC is expected to be integrated by a delegated governmental legislation act. 128

Regio Decreto 3 June 1926, No. 941, "Indennità' al personale dell'amministrazione dello Stato incaricato di missione all'estero", Gazzetta Ufficiale 11 June 1926, No. 134. 129 A general right to complaint has been recognised by Art. 3 Legge 20 March 1865, "Unificazione amministrativa del Regno di Italia. Allegato E. Abolizione del contenzioso amministrativo", Gazzetta Ufficiale 27 Aprii 1865.

476

Jörg Luther

audience with a superior - including the Minister of Defence - on questions related to service and discipline or to private issues which include complaints. The Minister of Defence can delegate another civilian or military authority to receive the soldier. Normally, the presentation of complaints and the demand for an audience must follow the chain of command, or the subordinate may face disciplinary sanction. Direct access for soldiers to superiors is limited to the commanders of the company or the detachment in cases of "justified reasons", to the commander of the corps in cases of "grave and urgent reasons", and to all competent authorities and superiors in cases of urgent security interests of the State and of h u m a n life. In cases of "personal questions of particular gravity and delicacy respecting one's position or the service", the soldier can demand that the superior transmit a written statement in a sealed envelope to the Minister of Defence. Soldiers can obtain authorisation for direct access to authorities charged with inspections. The same authorisation has to be obtained for visiting Members of Parliament. The Constitutional Court declared unconstitutional the prohibition of collective complaints and petitions because the institutional order can justify restrictions on the freedom of expression only in cases of political action and violence against the institution, not in cases "even [of] harsh criticism of the institutions, which criticism indicates a necessity to change them, and dissents ideologically from the political and social order" (Article 180 (1) C.P.M.P.). 130 But the Court upheld the prohibition on military gatherings (Article 184 (2) C.P.M.P.), 131 and has not yet faced the question of the constitutionality of the prohibition on "promot[ing] or sign[ing] a collective complaint or protesting] matters concerning the military service or discipline" (Article 184 (2) C.P.M.P.). 132 In Italy, judicial review of the administration is reserved to administrative courts. They can repeal administrative acts related to the status of the soldier, such as a transfer to another unit, disciplinary measures imposed (infra Vll.l.f), etc. All subjective rights of soldiers can also be defended by civil action, but the military victim of a military crime has no right to complain for a criminal prosecution. 133

130

Corte costituzionale, Judgement No. 126/1985.

131

Corte costituzionale, Judgement No. 31/1982.

132

For a case of complaints against the use of nuclear weapons, see Tribunale Supremo

Militare 21 November 1952, (1953) Rivista Penale, p. 154. 133

Corte costituzionale, Judgement No. 562/2000.

Military Law in Italy

477

7. Rights of Institutional Representation Italian soldiers have as yet no right to participate in trade unions, because "their activities could result in incompatibilities with the character of internal cohesion and neutrality [necessary to] the military order". 134 However, the "democratic-spirit clause" and the need to protect social rights have justified the institutionalisation of special forms of collective representation. Article 18 of the Law No. 382/1978 thus provides for the institution of representative organs at the central level (Consiglio Centrale di Rappresentanza - COCER), at each of the High Commands of the service branches (Consigli Intermedi di Rappresentanza - COIR), and finally at the "minimum level compatible with the structure of every force and corps" (Consigli di Base di Rappresentanza COB AR). 135 The system of representation aims to promote the "spirit of participation and collaboration, and contributes to the effort to maintain a high level of moral and material conditions for military personnel, in the best interests of the Institution." The system does not affect the duty of the superior to take care of the personal interests of his subordinates.136 The members are elected by the various categories of military personnel (officers, non-commissioned officers, volunteers, conscripts) within the respective service branches, and without any kind of representation by associations. Voting is obligatory, and written or oral propaganda may be made only within military installations and procedural rules must be observed. The organs of institutional representation may deliver opinions, proposals, and requests on questions related to legal and economic treatment, social security, or sanitary, cultural, and moral conditions, but not on organisation, training, operations, logistics, etc.137 Unlike the police forces, soldiers have no right to collective bargaining: only a right to be informed and heard (concertazione), including a hearing by the government prior to the pres-

134 135

Corte costituzionale, Judgement No. 449/1999.

For the historical background see G. Caforio and M. Nuciari, La rappresentanza tare in Italia (Roma, 1990).

mili-

136 Art. 1 Decreto del Presidente della Repubblica 4 November 1979, No. 691, "Regolamento che disciplina l'attuazione della rappresentanza militare", Gazzetta Ufficiale 12 January 1979, No. 11. 137

Art. 19 Legge No. 382/1978, now integrated by Art. 4 Decreto Legislativo 31 March 2000, No. 129, "Disposizioni integrative e correttive al decreto legislativo 12 maggio 1995, No. 195, in materia di rapporto di impiego del personale delle Forze di polizia e delle Forze armate, a norma dell'articolo 18 della legge 28 luglio 1999, No. 266", Gazzetta Ufficiale No. 118, 23 May 2000, No. 218. Supplemento ordinario No. 79.

478

Jörg Luther

entation of the annual budget proposal to Parliament.138 Recently these organs of institutional representation have been included in parliamentary hearings, but their members are not allowed to have contact with "organisations external to the armed forces", to express opinions on issues not authorised by law, or to make circulate their own internal deliberations.

VI. The Relationship of the Superior to Subordinate Personnel 1. Legal Rules concerning the Relationship between Superior and Subordinate a. The Position of the Superior The Regulation on Military Discipline 1986 concretised the principle of hierarchy determining the positions of superiors and subordinates. All military persons have a primary duty of obedience towards the Minster of Defence and the Sub-Secretaries of State (Sottosegretari di Stato). Military subordinates have further duties "inherent in the relationship of subordination towards soldiers of a superior rank and soldiers of equal or inferior rank invested with functions of command or directive charge, within the limits of the conferred attributions" (Article 12 (1) (a)). Superior position can be based on rank (grado), an abstract position, or on a specific attribution of command which can be made with specific territorial limitations. In cases of death, absence, or impediment, the sequence of succession is defined in the first instance by the specific rules of each service or corps (Article 12 (3)), otherwise it follows the general rules that higher rank prevails over lower grade, permanent service prevails over temporary service, and longer time in service over lesser time in service (Article 12 (4)). The rules no longer state any duty of subjective adhesion to the value of subordination (as the regulations from 1964 did), but superiors must consider their rank to represent a commitment to the institution of the armed forces, and must provide an example by the way they fulfil their duties and comply with discipline, creating a "spirit of emulation" (Article 10 (3)).

138 Art. 8bis Decreto Legislativo 12 May 1995, No. 195, "Attuazione dell'Artide 2 della legge 6 March 1992, No. 216, in materia di procedure per disciplinare i contenuti del rapporto di impiego del personale delle Forze di polizia e delle Forze armate" as revised by Decreto Legislativo 31 March 2000, No. 129, "Disposizioni integrative e correttive al decreto legislativo 12 March 1995, No. 195, in materia di rapporto di impiego del personale delle Forze di polizia e delle Forze armate, a norma dell'articolo 18 della legge 28 luglio 1999, No. 266", Gazzetta Ufficiale No. 118, 23 May 2000, No. 218 (suppl. No. 79).

Military Law in Italy

479

b. The Duties of the Superior The duties of the superior were revised in 1986. The superior must: Observe the Regulation on Military Discipline in avoiding public forms of reprehension (Article 21 (2) (b)), provide "exemplary conduct, acting with firmness, comprehensiveness and impartiality" (Article 21 (2) (h)), and respect the equal dignity of subordinates, (Article 21 (2) (a)), develop the personalities and individual qualities of subordinates (Article 21 (2) (c)), providing for military instruction and professionalism, cultural development, and formation of civic consciousness (Article 21 (2) (d)), take care of the living conditions and welfare of the personnel under his command (Article 21 (2) (e)), ensure that his subordinates respect security standards, and safeguard the physical integrity of subordinates (Article 21 (2) (f)), give audience when requested, even for private and family questions, and decide without delay on petitions and complaints (Article 21 (2) (g)), take energetic measures to provide subordinates with the best possible conditions for the execution of their orders (Article 21 (2) (i)), give clear orders, and communicate to superiors if normal service rules must be deviated from the sake of indispensable needs of the service (Article 23). The commander of a corps (comandante di corpo) also bears direct liability for discipline, organisation, employment, training, and, within the limits set up by specific rules, for the conservation of goods, for administrative management, and the use of military police (Article 22). Specific crimes attributable to commanders include: hostile acts against a foreign nation (Articles 103, 104 C.P.M.P.), allowing the loss, capture, collision, or grounding of a vessel or aircraft (Articles 105-109 C.P.M.P.), failure to use all available means to limit damage in case of fire or other accidents (Article 110 C.P.M.P.), unjustified abdication or transfer of command in case of danger to the command position (Article 111 C.P.M.P.), breach of the commander's duty to be the last to abandon the ship, aircraft, or station of duty in case of danger (Article 112 C.P.M.P.), failure to give assistance or protection in case of danger (Article 113 C.P.M.P.), unlawful movement of military forces (Article 115 C.P.M.P.), untimely opening of or failure to open a sealed envelope (Article 116 C.P.M.P.), and failure to fulfil an ordered or implied task (Article 117 C.P.M.P.). Should a superior threaten a subordinate in order to force the subordinate into an action contrary to his duties, the superior shall be punished with military confinement from six months to five years (Article 146 C.P.M.P.).

480

Jörg Luther

c. The Use of Force to Secure Compliance with Orders Violence, threats, and insults towards subordinates are specific military crimes (Article 195, 196 C.P.M.P.).139 The superior who uses violence (Article 195 C.P.M.P.) or threats or insults against a subordinate (Article 196 C.P.M.P.) commits specific military crimes of abuse of power which can not be justified unless there is a general state of need (Article 51 C.P.) or a case of specific military need like mutiny or revolt (Article 44 C.P.M.P.).140 The power of "direct coercion" is considered abrogated even in war-time.141

2. Subordination of Soldiers to the Command of a Superior of Foreign Armed Forces Subordination of Italian soldiers to the command of a superior officer of foreign armed forces can be qualified as a limitation of sovereignty, and must fulfil the conditions of Article 11 of the Constitution (supra I.2.a: International agreements made under "conditions of equality with other states", only limitations "necessary for an order that ensures peace and justice among Nations"). The powers transferred by the subordination have to be specified. The question whether they could include disciplinary powers has not yet been clarified. In the case of the MFO mission to Lebanon and Sinai (1982), the Italian soldiers employed in multinational missions were still "subordinated to the control of the Italian Government" but obligated to cooperate with the forces of the other countries involved. The agreement regarding the Multinational Land Force (MLF) provides explicitly that the force will be based on the "framework nation" principle, with Italy, as "leading nation", obligated to supply the commander and the "major part of the structure of the Headquarters of the Brigade" (Article 3).142 Should

139

Corte costituzionale, in its Judgements No. 173/1984 and 102/1985, declared unconstitutional the penal criminal sanctions of both articles, which were then modified in 1985. 140

See Venditti, "I reati contro il servizio militare", see η. 112, pp. 278 et seqq.

141

Legge No. 6/2002 abrogated Article 183 C.P.M.G. which imposed punishment of imprisonment for only one year on the commander who violated the prohibition on summary execution in cases of espionage and of violation of the laws and customs of war. 142

Legge 7 April 2000, No. 106, "Ratifica ed esecuzione dell'accordo tra il Governo della Repubblica italiana, il Governo della Repubblica di Slovenia e il Governo della Repubblica ungherese sulla costituzione di una Forza terrestre multinazionale, fatto a Udine il 18 aprile 1998", Gazzetta Ufficiale 19 Aprii 2000, No. 99. Art. 2 states that "MLF will be employed normally under the mandate of the U N Security Council, the CSCE or other international organisations".

Military Law in Italy

481

this force need to undertake an operation, the national authorities would have to establish a common "chain of operative command", and the states party to the agreement would have to authorise a "Transfer of Authority" (including operational control) to the Commander of the MLF (COMMLF) (Article 4). The MLF "normally" receives instructions from a Political-Military-SteeringGroup (PMSG) which includes representatives of the Ministers of Foreign Affairs and of Defence (Article 2 (3)). The deployment of the unit for multinational or international purposes must be decided unanimously by the States party to the MLF agreement (Article 2 (2)). The Agreement on the Multinational Peace Force South-Eastern Europe (SEEBRIG) signed in 1998 provides that "units allocated to SEEBRIG will remain at their permanent homebase locations" and "within the national command structure, until such time that they are declared mission-ready and are subordinated to a joint command i.e. COMSEEBRIG" (Article VI).143 "The Brigade Commander shall have the right to issue orders to subordinate units when the SEEBRIG is undergoing joint training in preparation for action in an area of operation in which the SEEBRIG is going to participate and for the duration of such an operation. These units shall be obliged to discharge the orders received, provided that they are not in conflict with the internal law of the country of which they are citizens and provided that they are consistent with the goals and principles for which SEEBRIG was created, consistent with the mandate SEEBRIG is operating under, and in conformity with the rules of engagement in force." (Article VII sub-section 7) This provision indicates a general standard which renders a veto power for the national representatives within the command and steering structures unnecessary.144 Italian commanders receiving orders from the commanders of the international or multinational forces have the duty to check the legitimacy of such orders, including their compliance with the provisions of the Italian Constitution.

143 The Brigade has a Brigade Command Group composed of the Commander of the Brigade, two Deputies, Chief of Staff, and two Deputy Chiefs of Staff. "The duties of the Brigade Commander shall be discharged on a two-year basis by an Army brigadier general of the Parties, where the duties of the Chief of Staff in the Brigade are discharged by a colonel of the Host nation. The other key command posts are to be rotational once every two-three years among the Parties. The exact length of rotation would be subject to advance consultation. The Host Nation would be excluded from COM, DCOMs and DCOS rotation (Art. VII sub-section 2)". 144 For the case of NATO, a veto power is argued for by (e.g.) R. Romano, Comando e Controllo nelle operazioni Nato, in: N. Ronzitti (ed.), Comando e controllo nelle forze di pace e nelle coalizioni militari (Milano, 1999), p. 248.

482

Jörg Luther

3. Service Regulations and their Legal Nature The "limits and modes" of obligatory military service (Article 52 (2) of the Constitution) and the organisation of the public offices (Article 97 (1)) must be framed by primary sources of law.145 This provision (so called "riserva di legge relativa") has only a relative value because the "order" {ordinamento) of the armed forces (like the order of other branches of public administration) can always be further composed and filled out by secondary sources. However, the general principle of legality and the democratic spirit of this order demand that secondary sources are authorised by primary sources (i.e. statutory acts). The regulations on military discipline have been in conformity with this general principle only since 1986.146 Another still disputed question is whether the principle of legality applies also to service regulations which have not been authorised by specific primary sources.147 Various service regulations regarding the armed forces have been approved by the Minister of Defence. They are available only in an internal publication made by the Chief of Staff of Defence.148 The "Regulation of the territorial and guard service" (Regolamento sul servizio territoriale e di presidio) was approved "in via sperimentale" in 1973 (S.M.D. - G - 106; infra Vili). The "Rules for Daily Life and Internai Service in Military Installations" (S.M.D. G - Oil) were enacted in 1992. There are even service regulations enacted by Royal Decree that are still in force, for example the "Regulation of the Territorial Military Health Service" of 1932. These "internal rules" have a practical value for the determination of the content of specific consignments and service 145 Art. 7 Decreto-Legge 28 December 2001, No. 451, "[...] recante disposizioni urgenti per la proroga della partecipazione italiana ad operazioni militari internazionali", emended by Legge 27 February 2002, No. 15, "Conversione in legge, con modificazioni, del decreto-legge 28 dicembre 2001, No. 451, recante disposizioni urgenti per la proroga della partecipazione italiana ad operazioni militari internazionali", Gazzetta Ufficiale 27 February 2002, No. 49; see also the stated specific criminal and disciplinary sanctions provided by the regulations regarding the Civil Working Service for war-time of 1942, which could be considered to be still in force: Regio Decreto 31 October 1942, No. 1611, "Testo Unico delle leggi sulla disciplina dei cittadini in tempo di guerra", Gazzetta Ufficiale 1943, No. 13 (ord. suppl.). 146 For the history of and doubts about the constitutionality of restrictions on personal freedom, see Rossi, 'Comment to Art. 52 section 3', supra n. 86, pp. 196 et seqq and infra VII.l. 147 See R. Balduzzi, Principio di legalità e spirito democratico nell'ordinamento delle Forze armate, Milano 1988, pp. 176 et seqq. 148

The list of secret issues attached to Regio Decreto 11 July 1941, No. 1161, "Norme relative al segreto militare", Gazzetta Ufficiale 20 October 1941, No. 257, includes the "order (ordinamento) [...] of the services and their functioning".

Military Law in Italy

483

orders. Violations of the relevant rules can be sanctioned as disciplinary wrongs.149 The legal nature of these rules is not clear, but regulations contrasting with laws and other ministerial regulations must be set aside.

VII. Sanctions 1. Disciplinary Law a. Disciplinary Power Disciplinary power is governed by Law No. 382/1978 containing "PrincipleRules on Military Discipline". The principle-rules fix the general rights and duties of soldiers (Articles 3, 6-12) and set up the guidelines and limits of discipline (Articles 4, 5 (2)-(6)), authorising the Government to concretise these principles in a general regulation (Article 5 (1)), assigning disciplinary power to the military authorities, and determining the various forms and procedures of disciplinary sanction (Articles 13-16). The disciplinary power has to guarantee the respect of the rules of discipline for all military personnel which carries out service activities or which is located in military areas or service areas or which is wearing uniform or qualifying itself as military personnel or acting towards other military personnel in uniform (Article 5). Sanctions can alternatively affect the "status" or the "corpus" of the military person.150 Sanctions which temporarily suspend or definitively invalidate a servicemember's military status are governed by the laws regulating the "status" of the officers and the other categories of military personnel.151 Sanctions affecting the "corpus" are subject to the Law No. 382/1978 and the Regulation on Military Discipline 1986. 149 Art. 38 C.P.M.P. (Disciplinary wrong): "Infringements of military duties and military discipline which are not offences are defined by the law or by the military regulations approved by decree of the President of the Republic, and are punishable as prescribed therein." Art. 57 of the Rules of Military Discipline 1986: "A disciplinary wrong subject to one of the corporal disciplinary sanctions [...] is any violation of the service and discipline duties set up by the law or by the military regulations or deriving from a given order." 150 The accretion of sanctions is excluded by Consiglio di Stato, section VI, 7 July 2000, No. 3835, in Consiglio di Stato I, 1687. 151

Legge 10 April 1954, No. 113, "Stato degli ufficiali dell'Esercito, della Marina e dell'aeronautica"; Legge 31 July 1954, No. 599, "Stato dei sottufficiali dell'Esercito, della Marina e dell'Aeronautica"; Legge 18 October 1961, No. 1168, "Norme sullo stato giuridico dei vice brigadieri e dei militari di truppa dell'Arma dei Carabinieri"; Arts. 4 4 - 4 6 Legge 3 August 1961, No. 833.

484

Jörg Luther

Disciplinary power is a prerogative of the hierarchical superior, but competencies differ in relation to the different kinds of sanctions.152 All superiors excluding the Minister of Defence - are authorised to make oral admonitions of all subordinates, even those not directly under their command. Other sanctions "at corpus" are reserved to the commanders of the corps or of the unit (ireparto) or, in case of written reproach, to the commander of the detachment (distaccamento), and can be taken against all personnel functionally subordinated. The commander himself and all officers above the rank of corps commander are subject to the disciplinary power of their own direct superiors, or to other authorities chosen ad hoc by the Force or Corps (Article 56 Regulation on Military Discipline 1986). All commanders of corps status or higher, as well as the Minister of Defence, are also invested with the power to order inquiries for sanctions "at status".153 The actual exercise of these sanctions is reserved to the Minister of Defence. The sanction of demotion can be applied only on the basis of the recommendation delivered by a specific Disciplinary Council. b. Relation to Criminal Law Historically, "discipline" has been subject to two processes of codification in Italy. The first codification (1869-1941) was in regard to military criminal law, and the second (1964-1986) to military disciplinary law.154 The crimes of military persons, connected to dolus or culpa, have been defined for all crimes not specifically of military character by a) the General Criminal Code, b) the Military Criminal Code for Peace-time (C.P.M.P.) and c) the Military Criminal Code for War-time (infra VII.2.). Disciplinary wrongs are defined as voluntary forms of conduct which infringe duties defined by secondary sources of law or individual orders. The criminal and the disciplinary laws protect values related both to service and discipline, for instance through the crime of disobedience (Article 173 C.P.M.P), but both the Judiciary and the Legislature (in its creation of laws protecting such values) must also respect the general principles of subsidiarity and proportionality.155 The criminal prosecution should thus be considered an obligatory power, the disciplinary sanction a discretionary power. 152

Art. 56 Regulation on Military Discipline 1986.

153

Art. 75 Legge No. 113/1954; Art. 65 Legge No. 599/1954; Art. 124 Legge No. 1168/ 1961.

154

Venditti, ΊΙ diritto penale militare nel sistema penale italiano' (7nd ed., Milano, 1997), 112 et seqq.

155 G. Mazzi, in: Riondato, 'Il nuovo ordinamento disciplinare delle Forze armate' supra, η. 99, p. 372; R Granata, Codici penali militari (Roma, 2001), p. 168.

Military Law in Italy

485

The concrete relationship between disciplinary and penal proceedings and sanctions is nevertheless often controversial. In a large number of cases, the commander has a choice between disciplinary and penal proceedings. In fact, minor criminal offences punished with military confinement of no more than six months can be prosecuted only "on demand of the commander of the corps or other body to which the culprit is subordinate" (Article 260 (2) C.P.M.P.). If he decides for a disciplinary proceeding in cases of minor criminal offences, he is always obliged to give notice of the facts to the prosecutor's office (Article 301 C.P.M.P.). The commander has the power to initiate the disciplinary proceeding of close arrest even if the criminal procedure regarding the same facts has been already defined (Article 65 (7) (b) Regulation on Military Discipline 1986). The demand for a criminal proceeding is not considered as an administrative act and is thus not subject to a duty of motivation and judicial review by administrative courts. Article 260 C.P.M.P. has been upheld by the Constitutional Court.156 The court declared that the provision would be unconstitutional only "for the part in which it does not provide that - if the person offended by the alleged conduct is the commander of the corps to which the military belongs - the respective crimes shall be punished upon request of the commander of other superior units."157 Practical problems arise from the different powers to order suspension from the service. Suspension can be a definitive disciplinary sanction, a facultative order of the Minister for "grave reasons" made prior to the disciplinary proceeding, a facultative or obligatory order of the criminal court for procedural reasons, or a secondary punishment. The criminal procedure code (C.P.P.) provides that a criminal sentence has the force of res judicata (forza di giudicato). The conclusions of the sentence referring to the facts, their imputation, and their qualification as a crime are binding for the disciplinary proceeding (Article 653 C.P.P.).158 The same binding effect is produced if the decision to apply the sanction is the result of a special bargaining procedure (patteggiamento, Article 447 C.P.P.). This binding effect has a practical value especially in cases of status sanctions, because judges do not have the power to expel military personnel.

156

Corte costituzionale Judgements No. 42/1975, 189/1976; 114/1982; 449/1991; 238, 295/1992; 467/1995; 396/1996; 53,409/2000. 157 158

Corte costituzionale Judgement No. 449/1991.

Modified by Legge 27 March 2001, No. 97, "Norme sul rapporto tra procedimento penale e procedimento disciplinare ed effetti del giudicato penale nei confronti dei dipendenti delle amministrazioni pubbliche", Gazzetta Ufficiale 5 Aprii 2001, No. 80.

486

Jörg Luther

The Constitutional Court has not yet decided whether corporal disciplinary sanctions like confinement or close arrest can be cumulated with criminal sanctions or not (ne bis in idem).159 In accordance with the provisions made for civil servants, the Minister of Defence has given the directive to suspend all disciplinary proceedings concurring with pending criminal proceedings.160 c. The Purpose of Disciplinary Law The purpose of disciplinary law has changed. Disciplinary sanctions are no longer conceived of as having "primarily a moral value" (Article 80 (2) Regulation on Military Discipline 1964), but rather merely as a way to guarantee good performance (buon andamento) in the service of collective military defence: "Military discipline is the conscientious observance of the provisions dealing with the status of the military person in relation to the institutional tasks and consequent needs of the armed forces. This is a fundamental rule for citizens under arms which constitutes the principal factor of cohesion and efficiency. " (Article 2 Regulation on Military Discipline 1986). d. Disciplinary Measures The sanctions affecting status are similar to those affecting civil servants, except for the absence in the military framework of pecuniary sanctions. Status sanctions consist in: a) suspension from the service for 1 to 6 months for common soldiers, and from 2 to 12 months for commissioned and non-commissioned officers, b) suspension of the functions of rank (for officers), c) expulsion from voluntary service (common soldiers and non-commissioned officers), d) loss of Rank by Removal (Expulsion). The sanctions affecting corpus consist in:

159 Corte costituzionale, Judgement No. 406/2000; no more application seems to be given to Art. 60 C.P.M.P. (Confinement ordered for disciplinary reasons; equivalence with preventive detention): "For the purpose of effective date of punishment, confinement ordered for disciplinary reasons by the military authority pending trial is considered equivalent to the term of confinement served before the final judgement has been passed." 160 G. Mazzi, in: Riondato, ΊΙ nuovo ordinamento disciplinare delle Forze η. 99, p. 474.

armatesupra

Military Law in Italy

a) b) c) d)

487

oral admonition (richiamo), written reproach (rimprovero), confinement to the barracks (consegna), close arrest (consegna di rigore).

Confinement to the barracks consists in the removal of the right to leave the barracks for not more than seven days (Article 14 (4) Law No. 382/1978). Close arrest implies the duty to remain in one's private or official housing, or in similar military areas, for a maximum of fifteen days (Article 14 (5) Law No. 382/1978). Confinement to the barracks can be ordered in cases of "a) non-observance of duties, b) recidivism in defaults, and c) transgressions of provisions of discipline and service which verge on being grave" (Article 64 Regulation on Military Discipline 1986). Close arrest can be applied in all cases of minor criminal offences for which the commander has decided not to demand a criminal procedure, and in a further 55 cases specifically listed in an attachment to the Regulation on Military Discipline. e. Disciplinary Law and the European Convention on Human Rights Italy made no reservations to the European Convention on Human Rights. The academic debate is focussed on questions about the compatibility of the disciplinary sanctions affecting corpus not only with the constitutional principles of personal freedom (Article 13 of the Constitution) and legality (Article 23 of the Constitution), but also with Articles 5 and 6 ECHR.161 Confinement to the barracks and close arrest could be qualified as a special kind of sanction different from criminal charges, but a detention different from those justified by Article 5 (1) because ordered by a non-jurisdictional authority of the armed forces and finalised to secure the fulfilment of obligations fixed by regulations rather than by law. Article 5 (3) might be violated by the provision that recourse to an administrative court in appeal against disciplinary proceedings can be made only after the hierarchical channel has been exhausted. The practical effect of this provision is that the judge no longer has the power to order a soldier's release (Article 16 (2) Law No. 382/1978). Defenders of the law argue that the denial of leave and the order to stay in a specific area simply

161

See E. Marzaduri, Processo penale e processo disciplinare: giurisprudenza "europea" e prospettive per la legislazione interna italiana, in: M. Cappelletti and A. Pizzorusso, L'influenza del diritto europeo (Milano, 1984), pp. 591 et seqq; A. Carióla, Servizio militare, sanzioni disciplinari e principi costituzionali, (1988) Diritto e società, pp. 435 et seqq; E. Rossi, 'Comment to Art. 52 section 3', supra η. 86, pp. 228 et seqq.

488

Jörg Luther

concretise the general restrictions of freedom implicit in the status of military personnel.162 f . The Disciplinary Procedure and Legal Remedies The principles of military discipline (Article 15 Law No. 382/1978) and the Regulation on Military Discipline of 1986 (Articles 58 and 59) provide the following oral proceeding for disciplinary sanctions "at corpus": report, notification of the charges, hearing of justifications and witnesses, examination, decision, communication. The proceeding must be initiated "without delay" and must be concluded within 90 days. In all cases apart from oral admonition the final decision must have a written justification. The various procedures for sanctions of status can be initiated by the various commanders of corps within a 180 days term, have a more complex inquiry ("formal inquiry" for commissioned and non-commissioned officers, "military fact finding" for soldiers) carried out within 90 days by a specific officer nominated by the proceeding authority, involve a "disciplinary council" composed by 5 officers for proceedings regarding officers and have than to be concluded within another 90 days. In cases of minor crimes not necessitating criminal procedure, or other disciplinary wrongs sanctionable by close arrest, the following procedural guarantees must be applied (Article 15 Law No. 382/1978, Articles 66-69 Regulation on Military Discipline). The commander nominates an ad hoc "Consulting Commission" composed of three soldiers, two of them of a higher rank and the other of the same rank as the person subject to the proceeding. The president of the commission must be the highest-ranking member of the corps. The soldier has the right to defend himself and to appoint a military defender. The Constitutional Court extended this right even further by declaring it unconstitutional to limit the choice of defender to military personnel of the same unit.163 If the appointment is not made within 24 hours, the defender will be chosen by the commander. The existing rules do not define the rights and duties of the defender pertaining to the procedure. The Commission apparently has no right to interrogate the soldier or witnesses. The final oral recommendation of the Commission is not binding for the decision of the commander.

162 This interpretation has been not excluded by Corte No. 406/2000.

costituzionale,

Judgement

163 Corte costituzionale Judgement No. 448/1992. N o defender is nominated during the inquiry in proceedings for sanctions at status before the commission or council is constituted.

Military Law in Italy

489

Confinement and close arrest must be executed immediately, but the commander has the power to suspend execution for service or personal reasons. In cases of specific need and urgency, the commander of the corps can adopt provisional measures valid for not more than 48 hours (Article 15 (3) Law No. 382/1978). The Minister and the Chief of Staff of the respective service branch have the power to remit the penalty. Soldiers enjoy the following remedies which are not subordinated to the execution of the sanction and can be considered disciplinary infringements only if based on "false allegations" (Article 16 Law No. 382/1978 and Articles 70-75 Regulation on Military Discipline 1986):164 -

-

-

request to reopen the proceeding in case of new evidence, request to suspend the execution of the sanction, recourse to the direct superior of the deciding commander (ricorso gerarchico), presented under the general rules for such recourse (within 30 days, in written form, etc.) and respecting the military hierarchy, recourse to the competent administrative court within 60 days, counted from the decision on the hierarchical recourse which has to be communicated within 90 days, otherwise such recourse is presumed to be rejected, special recourse to the President of the Republic (alternative to the jurisdictional recourse and without legal assistance) within 120 days, decided on the basis of a procedure initiated by the competent minister, who demands a recommendation from the State Council (Consiglio di Stato), which is binding unless the Council of Ministers decides not to conform to the recommendation.

g. Representation of the Armed Forces during Disciplinary Proceedings There is no special office representing the armed forces during disciplinary proceedings because they are considered different from criminal prosecution. The function of representation is fulfilled by the commander and the consulting commissions. h. Measures of Commendation Commendation may consist in military reward (ricompense) or military distinctions of honour (distinzioni onorifiche) (Article 76 Regulation on Military Discipline 1986). The first may consist in nomination for a specific title (Ordine 164

Case of grave violation sanctioned by close arrest: Art. 65 Rules on Military Discipline 1986, Allegato C, No. 36.

490

Jörg Luther

militare d'Italia), the conferment of medals (medaglia al valore militare etc.), or advancement, promotion, and transfer to higher ranks. The conferment of these kinds of honours of the Republic is reserved to the President (Article 87 of the Constitution). Other commendations conferred by the General Chiefs of the various service branches are the solemn encomium, simple encomium, and commendation for bravery (elogio) (Article 77 Regulation on Military Discipline 1986).

2. Military Criminal Law a. General Issues Italy has two special military criminal law codes with specific substantial and procedural norms applied by special military courts. The Military Criminal Code for Peace-time contains the general rules of the military criminal law and applies to all military personnel in service or called up for obligatory service, and also to certain categories of retired military personnel (Articles 5-7 C.P.M.P.), to chaplains and other military civil corps (Article 10 C.P.M.P.), and even to civilians if they commit certain crimes or participate in certain crimes committed by military personnel (Article 14 C.P.M.P.). The Code applies even if the servicemembers are occupying, stationed in, or in transit through foreign territory (Article 17 C.P.M.P.165). The Military Criminal Code for War-time applies to the same categories named above, normally for the period of declared war and within the territory subject to that declaration (Article 3 - 4 C.P.M.G.), but the personal, territorial, and temporal limits can be extended. The Code could be applied even in time of peace 166 a) to the national territory or a part thereof if ordered by presidential decree "for reasons of urgent and absolute need" (Article 5 C.P.M.G.), b) to an "assembly of vessels, aircraft, or detached land forces for any military or police operation" (Article 8 C.P.M.G.), c) to "expeditionary forces for military operations abroad" (Article 9 C.P.M.G.), 167 d) to "a unit of the national armed forces 165

"Military criminal law applies to any person subject to it, also in respect to offences committed by a member of the national armed forces during the occupation of a foreign state or while stationed in or travelling through it, in accordance with international conventions, custom, and usage." 166 167

The following provisions could be considered partially unconstitutional.

Art. 9 C.P.M.P. was recently amended by Art. 2 of the Legge No. 6/2002: "(1) Until the entry into force of a new organic legislation on military criminal law, expeditionary forces for armed military operations abroad are subject to the military criminal law of war even in time of peace from the time of border crossing and, in case of an expedition

Military Law in Italy

491

[...] engaged in military operations for reasons of public order" (Article 10 C.P.M.G.), or e) to members of forces subject to partial or general mobilisation (Article 11 C.P.M.G.). Insofar as the cases of calling foreign troops in and sending national troops abroad are concerned, Italian law follows the principle "ubi signa ibi jurisdictio" (giurisdizione di bandiera), but demands the regulation of the exercise of Italian jurisdiction by international agreements and customs (Article 267 C.P.M.P.). The power of the Minister of Justice to renounce Italian jurisdiction over crimes committed by foreign military persons belonging to NATO has been upheld by the Constitutional Court.168 The doctrine holds that the expeditionary clause applies even to peace support missions (Article 9 C.P.M.G.).169 Ever since the Gulf missions of 1990, the law decrees authorising specific missions have provided for the application of the military criminal code for peace-time. Only on the occasion of the Enduring-Freedom/ISAF mission to Afghanistan did the Legislature opt for the application of the partially revised Military Criminal Code for War-time (infra IX. 1). The Military Criminal Code for War-time applies furthermore to prisoners of war (Article 12), to offences committed by the members of an enemy military force against the laws and customs of war (Article 13), and to offences against military personnel in service committed by persons unrelated to national armed forces (Article 14). Offences against allied or associated forces can be considered offences against Italian forces, if their states have guaranteed reciprocity.170

overseas, from the moment the expeditionary corps embarks on military vessels or military aircraft, or, as far as their crews are regarded, from the moment the destination of the expedition has been communicated. (2) Limited to the facts related to the operations abroad as defined by section 1, military criminal law applies furthermore to the military personnel of command, control, and support for the expeditionary forces located on the national territory or on the territory of other countries, from the moment they receive the communication of their assignment to such tasks, regarding crimes committed during or in occasion of the service." 168

Corte costituzionale, Judgements No. 96/1973; 446/1990.

169

Rivello, 'Processo e orinamento giudiziario militare', supra η. 16, pp. 292 et seqq.

170 Art. 15 CPMG: For the purpose of military criminal law of war, the offences committed by Italian military persons or by persons unrelated to the Italian armed forces to the detriment of military persons or armed forces of an allied state are considered as having been committed to the detriment of Italian military persons or armed forces. The observance of this provision is subject to the condition that the allied state ensures equal criminal protection to the Italian military persons and armed forces. For the purposes of the provision of this code, the term "allied state" comprises also the state associated in war.

492

Jörg Luther

b. Relation to General Criminal Law The military criminal codes contain a special criminal legislation governed by all the dispositions of the General Criminal Code (codice penale, CP) not explicitly derogated (Article 16 CP). Substantially, the military criminal law is first of all a sort of "personnel statute" applied to all military personnel in service (with important exceptions). This statute is based on a specific system of military sanctions (infra e), even if the Military Criminal Code for Peace-time also provides ordinary sanctions for several crimes.171 The doctrine and the constitutional jurisprudence hold that the principal element for the justification of a special military criminal law provision has to be a specific military interest such as those related to service needs, discipline, and democratic spirit.172 There are thus the so-called "exclusively" military crimes, affecting exclusively military interests,173 and the so-called "objectively" military crimes involving both common and military interests and including special cases of common crimes.174 The Constitutional Court recognises to the legislature a wide power of discretion in determination of these military crimes.175 The reform of the Military Criminal Code for War-time of 2002 has qualified as military crimes "all other infringements of the criminal law committed by a member of the armed forces constituting an abuse of powers or violation of duties related to the military status and considered a crime against 1) the State, 2) the public administration, 3) the administration of justice, 4) public order, 5) public safety, 6) public confidence, 7) public morality and decency, 8) persons, or 9) property" (Article 47 (2) C.P.M.G.), "all other infringements of the criminal law committed by a member of the armed forces in a military area in the course of military service, offending the military service or the military administration or another military person, or a person of the civil population staying within the territory of operations" (Article 47 (3) C.P.M.G.), and "all other infringements of the criminal law qualified as a crime (delitto) in matters

171

E.g. crimes like larceny and wrongful appropriation (Arts. 25 et seqq C.P.M.P.).

172

Corte costituzionale, Judgement No. 22/1991 declared unconstitutional Art. 199 C.P.M.P. insofar as it provided that the military criminal law does apply to military personnel, even those off-duty, if they stay "in a military area". 173 E.g. Art. 37. Military offence: "Any violation of the military criminal law is a military offence. An act which, in its essential constituents, is not considered in full or in part an offence under the common criminal law, is a strictly military offence [...]." 174 See Venditti, 'Il diritto penale militare nel sistema penale italiano', supra η. 154, p. 103; D. Bruneiii and G. Mazzi, Diritto penale militare (2 edn, Milano, 1998), p. 66. 175

Corte costituzionale, Judgements No. 42/1977; 26/1979; 213/1984; 81/1990; 298/1995.

Military Law in Italy

493

of control of arms, munitions, and explosives and of production and illicit traffic of drugs committed by a member of the armed forces in a military area" (Article 47 (4) C.P.M.G.). These general clauses aim to extend the reach of military jurisdiction, especially in cases of expeditions abroad. c. Military Criminal Courts According to Article 103 (3) of the Constitution, military courts are entitled to exercise in war-time the jurisdiction established by the law, whereas in peacetime their jurisdiction extends "only to military crimes committed by members of the armed forces". The extension of the peace-time military jurisdiction to other persons subject to military criminal law, for example conscientious objectors and discharged personnel, has been declared unconstitutional.176 Article VI of the final provisions of the Constitution urged a reform of the Supreme Military Tribunal and its relationship to the Supreme Court (Corte di Cassazione).177 The Supreme Military Court was abolished by Law No. 180/ 1981, which placed the Corte di Cassazione at the top of the military jurisdiction.178 Law No. 180/1981 abolished the very institution of special military courts on board ship (Tribunali Militari di bordo), and special courts for expeditions abroad in peace-time.179 A Court of Military Appeals has been established in Rome, with two branch-courts in Verona and Naples (Article 3). The territorial military courts consist of an appellate military magistrate as Chief Justice, another military magistrate, and an officer of a rank equal to the defendant, chosen by lot (Article 2).180 A special Military Office of Surveillance ( U f f i c i o militare di sorveglianza) which has jurisdiction over military prisons has been established in Rome (Article 409 C.P.M.P.).181 War-time jurisdiction has not been reformed since 1941. The ordinary and extraordinary military tribunals for war-time (Tribunali militari di guerra d'armata, Tribunali militari di Corpo d'armata, Tribunali militari di Piazza forte (Artide 251 C.P.M.G.), Tribunali militari territoriali di guerra, Artide 252 176

See Corte costituzionale, Judgements No. 112 and 113/86 (conscientious objectors); 78/89 (minors); 429/92 (discharged personnel). 177

Interpreted by Corte costituzionale, Judgement No. 119/1957.

178

Upheld by Corte costituzionale, Judgement No. 1/1983.

179

Legge 7 May 1981, No. 180, "Modifiche all'ordinamento giudiziario militare di pace", Gazzetta Ufficiale 8 May 1981, No. 125. There are nine military courts located in Turin, Verona, Padua, La Spezia, Rome, Naples, Bari, Palermo, and Cagliari. Offences committed abroad fall within the jurisdiction of the military tribunal of Rome (Art. 9). 180

Upheld by Corte costituzionale, Judgement No. 49/1989.

181

See .

494

Jörg Luther

C.P.M.G.) are created by the supreme commander or by the commander of the unit.182 They meet in the case of arrests in flagranti delictu or in case of a "need for an immediate trial, for the purposes of making an example" (Article 283 C.P.M.G.). The decisions cannot be reviewed by the Supreme Court (Corte di Cassazione) (Articles 288, 289 C.P.M.G.). These and other rules relating to the organisation and the procedure of these courts are suspected to be unconstitutional. The legislation regarding the multinational operation Enduring Freedom provided that military jurisdiction for the expeditionary forces will be exercised by the existing military courts for peace-time. The procedure of the Military Criminal Code for War-time (Book IV) does not apply. d. Relationship between Civilian and Military Courts The military courts are special criminal courts for the members of the armed forces, but not all crimes committed by military personnel are military crimes. In case of connected criminal proceedings pending in both military and civilian courts, the Code of Criminal Procedure (codice diprocecura penale, C.P.P.) provides for an extension of the jurisdiction of the ordinary judge only if the common crime is more grave than the military one (Article 13 C.P.P.). Conflicts between the two jurisdictions can be resolved by a specific recourse to the Corte di Cassazione (Articles 28 et seq. C.P.P.).183 The independence of military magistrates (judges and prosecutors, infra VII.2.f.) is guaranteed by the Military Judiciary Council (Consiglio della magistratura militare), which was established by Law No. 561/1988 following the model of the Superior Council of the Judiciary.184 The Council consists of the

182 Art. 65 Regio Decreto 9 September 1941, No. 1022, "Approvazione dell'ordinamento giudiziario militare", Gazzetta Ufficiale 27 September 1941, No. 229. 183

The prevailing doctrine holds Art. 264 C.P.M.P. - which provided that a connection of the proceeding exists "only when they concern offences committed at the same time by several persons together or by several persons in different places and at different times, but in complicity, or by several persons to their mutual detriment, or offences committed to perform or conceal other offences to obtain or guarantee the relevant profit, price, product, or impunity to the benefit of the culprit or other persons - to be implicitly abrogated. However, the Corte di Cassazione, subject to the prosecutor's appeal to a civil or a military judge, or by settling the conflict between the courts, can order by reason of convenience the separation of the proceedings through a sentence."; See Rivello, 'Processo e orinamento giudiziario militare', supra η. 16, pp. 113e/ seqq. 184 See Arts. 104 et seq. of the Constitution and Legge 30 December 1988, No. 561, "Istituzione del Consiglio della magistratura militare", Gazzetta Ufficiale 5 January 1989, No. 4.

Military Law in Italy

495

Senior Chief Justice of the Corte di Cassazione acting as president, the Military Attorney General on the Corte di Cassazione, five members elected by the military magistrates, of whom at least one must be a military magistrate of the Corte di Cassazione, and two members appointed by the Speakers of the two Houses of Parliament from among university professors of law and lawyers having at least fifteen years' of practice; one of them shall be appointed Vice President by the Council. The Council has administrative powers with regard to the recruitment, assignment, transfer, and promotion of military personnel, and exercises disciplinary power over the military magistrates.185 Disciplinary proceedings against military magistrates must be conducted according to the same rules as provided for the ordinary magistrates, and military magistrates can appeal disciplinary measures before the United Civil Sessions of the Corte di Cassazione.l86

e. Special Rules with Regard to Legal Procedure and Sanctions

System

The legal procedure of the military courts was governed for a long time by the provisions of the Military Criminal Code for Peace-time (Book IV), inspired by the principles of promptness, exemplariness, and professional specialisation. A few provisions have been declared unconstitutional, 187 a large number have been implicitly abrogated by the new Criminal Procedure Code (1989).188

185 Upheld by Corte costituzionale, Judgement No. 71/1995. Judgement No. 266/1988 declared unconstitutional Art. 15, sub-section 1 of Legge 7 May 1981, No. 180, which established a provisional "panel" to ensure the independence of military magistrates, because Art. 108, sub-section 2 of the Constitution demands permanent guarantees; furthermore, Legge 38/1989, established in the Ministry of Defence a "governing body for military justice's clerks and court clerks with terms of reference as provided by law in personnel matters". It is composed by a) a military cassation magistrate detailed to higher executive functions, acting as President, a military magistrate acting as appellate judge, the eldest senior executive among the executives of military justice's clerks, a senior executive serving with the Directorate General for Civilian Personnel of the Ministry of Defence, a military justice's clerk, and a court clerk. 186

Art. 1, sub-section 3 of Legge No. 561/1988 upheld by Corte costituzionale, Judgement No. 71/1995; Art. 15 of the same Law, which reserved disciplinary powers to the Minister of Defence for a transitional period, was declared unconstitutional by the Corte costituzionale, Judgement No. 561/1988. 187 See M. Siclari, La giurisdizione militare nella giurisprudenza costituzionale, in: P. Ciarlo et. al. (eds.), Giudici e giurisdizioni nella giurisprudenza della Corte costituzionale (Torino, 1997), pp. 383 et seqq. 188 See G. Mazzi, Processo penale militare, in: Digesto delle discipline penalistiche, X (Torino, 1995), pp. 129 et seqq; R. Venditti, Il processo penale militare e il nuovo codice di procedura penale (Milano, 1993).

496

Jörg Luther

The Constitutional Court declared unconstitutional inter alia (i) the nomination of officers as official defence counsellors,189 (ii) the power of the commander to order the arrest of a servicemember merely suspected to have committed a military crime, even if not caught in flagranti (Article 309 C.P.M.P.),190 (iii) the obbligatory arrest for soldiers caught in flagranti criminis (Article 308 C.P.M.P.),191 (iv) the exclusion of military courts in the rules providing for the suspension of proceedings on holidays,192 (v) the obligation for the accused soldier to appear personally at the hearing (Article 365 C.P.M.P.),193 and (vi) the exclusion of the right of civilians to present an action for restitution and damages in the trial of the military crime (Article 270 C.P.M.P.).194 The disciplinary power of the President of the military court regarding the members of the defence counsel has been abrogated. The remaining special rules of the military criminal procedure concern the territorial competencies of military courts, the role of the military judiciary police and the Military Prosecutor (infra f.), and the ratification of arrests abroad (infra IX. 1). The sanctions system of military criminal law is a mixed system based on special military punishments such as military confinement (reclusione militare), demotion, dismissal, suspension from duty, deprivation of rank, and publication of the verdict of guilty, and common punishments which apply if the sentence does not pronounce demotion. The singularity of military punishments is justified only by the military status of the interested person and consists in special modalities of execution subordinated to the scope of rehabilitation for the military service.195 By virtue of Law No. 583/1994, the death penalty (Article 25 C.P.M.P.) has been replaced by lifelong imprisonment (ergastolo). Military confinement may last from one month to twenty-four years, and shall be executed in a military place of confinement, and include the obligation to work, in accordance with the relevant legislation or military regulations approved by decree of the President of the Republic (Article 26 C.P.M.P.). Demotion deprives the soldier of his military status, and applies to cases of life imprisonment, imprisonment for 5 years and more, or when the court states that the offender has a tendency towards habitual offence, has made a habit of crime, or has a tendency to crime (Article 28 C.P.M.P.). Detention can be replaced by alterna-

189

Corte costituzionale, Judgement No. 320/1983.

190

Corte costituzionale, Judgement No. 74/1985.

191

Corte costituzionale, Judgement No. 503/1989. Corte costituzionale, Judgement No. 278/1987.

192 193 194 195

Corte costituzionale, Judgement No. 301/1994. Corte costituzionale, Judgement No. 60/1996. Corte costituzionale, Judgement No. 188/1996.

Military Law in Italy

497

tive measures such as release on probation (affidamento in prova)196 and house arrest (arresti domiciliari) for special medical reasons.197 /

The Military Prosecutor

The Law No. 180/1981 (Article 5) has established an autonomous military prosecutor's office at the Corte di Cassazione consisting of the Military Attorney General of the Republic (Procuratore generale militare della Repubblica), appointed among military review magistrates detailed for higher executive duties and one or more Substitute Military Attorneys General who perform judicial duties with the Corte di Cassazione. The Military Attorneys of the analogous offices existing at the Court of Military Appeals and the Military Courts are subordinated to the Military Attorney General, but within the territory of their courts they can exercise all the functions of the prosecutor including the power to decide on the presentation of appeals. The military attorneys have the power to direct the military judiciary police forces consisting of a) the commanding officers of corps, detachments, or units, and b) the Carabinieri officers and other criminal police officers specified by the law (Article 301 C.P.M.P.). If they do not comply with the directives, the Attorneys can demand the application of specific disciplinary sanctions (Article 305 C.P.M.P.). The military attorney no longer has a duty to give legal advice to the local military authorities.198 Military attorneys have an independent status, like prosecutors in the civilian courts. The independence of the military attorneys has been guaranteed since 1988 by the Military Judiciary Council. g. Justification by Superior Orders The military criminal codes contain specific military justifications199 and specifications of the common rules of justification related, for example, to the use of weapons {infra VIII.3). According to the principle codified by the Common 196 Legge No. 167/83 extended by Corte costituzionale, Judgement No. 119/1992. See Venditti, 'Il diritto penale militare nel sistema penale italiano', supra η. 154, pp. 255 et seqq. 197

Corte costituzionale, Judgement No. 414/1991.

198

Art. 52 of the Royal Decree No. 1023/1941 is considered to be implicitly abrogated. See P. Rivello, 'Processo e orinamento giudiziario militare', supra η. 16, pp. 119 et seqq. 199 See for example Art. 44 C.P.M.P. (Particular cases of military need): "Any person subject to this code who commits an offence by necessity to prevent mutiny, sedition, pillage, devastation and any other act likely to endanger the safety of the place, ship or aircraft, is not punishable."

498

Jörg Luther

Criminal Code, for any crime ordered by a public authority the liability is assigned both to the commanding officer and the executing soldier "except in cases in which the soldier believed by an error of fact to be obeying a lawful order" (Article 51 (3) C.P.).200 Since 1978, soldiers have been obliged to check if orders conform with the criminal codes and to refuse obedience to orders "obviously directed against the institutions of the State, or the execution of which obviously constitutes a crime" (Article 4 Law No. 382/1978, supra V.3). If they use the procedure of remonstration mentioned in Article 25 of the Regulation on Military Discipline 1986, they can be punished only if there is evidence that they had no real doubts regarding the unlawfulness of the order in question. h. Sanctions for Non-Compliance with International Humanitarian Law The 1941 Criminal Code for War-time contains a long list of "crimes against the laws and customs of war" (Title IV, Articles 165-230 C.P.M.G.) divided into "illicit war acts", "violation of duties regarding the infirm, wounded, shipwrecked, dead, or medical personnel" and crimes against "war prisoners". These sanctions could apply to crimes against foreigners only if the interested state had guaranteed the same protection to Italian citizens (Article 165 C.P.M.G., former version). The C.P.M.G. has been adapted to the Geneva Conventions of 1949/1977 only by Law No. 6/2002, which abolished the reciprocity clause and created specific prohibitions on the capture of hostages (Article 184-bis C.P.M.G.) and torture (Article 185-bis C.P.M.G.).201 The sanctions apply "to any case of armed conflict" and do not depend on the formal declaration of State of War (Article 165 C.P.M.G., new version).

200

Art. 22 of the Legge No. 382/1978 abrogated Art. 40 C.P.M.P., which restricted the liability of the executing soldier to cases of "evident crimes". 201 Legge 31 January 2002, No. 6, "Conversione in legge, con modificazioni, del decretolegge I o dicembre 2001, No. 421, recante disposizioni urgenti per la partecipazione di personale militare all'operazione multinazionale denominata [Enduring Freedom], Modifiche al codice penale militare di guerra, approvato con regio decreto 20 febbraio 1941, No. 303", Gazzetta Ufficiale 2 February 2002, No. 28; for the history see P. Benvenuti, Il ritardo della legislazione italiana nell'adeguamento al diritto internazionale umanitario, con particolare riferimento alla disciplina dei conflitti armati non internazionali, in: P. Zanardi and G. Venturini (eds.), Crimini di guerra e competenza delle giurisdizioni nazionali (Milano, 1998), p. 108.

Military Law in Italy

499

/'. Ratification of the Rome Statute of the International Criminal Court Italy ratified the Rome Statute on 26 July 1999, without any reservation or declaration. 202

VIII. Regulations Governing Guard Duties 1. Powers of Guards Towards Military Personnel as well as Towards Civilians Military guard competencies have no basis in a specific parliamentary regulation.203 The duties of guards are regulated by the military criminal codes and a specific service regulation made in 1973 (supra VI.3).204 Guard service can be ordered in three cases: a) honour guards, b) guards for military needs, including border surveillance,205 and c) guards for public security needs defined on a specific legal basis. Depositories for explosives and other military facilities can be partially or totally secured by sworn guards. The guard may be armed (sentinella) or not (piantone). Normally the so called "sentinella" (sentry group) is composed of a commander and three military personnel for every place defined in the mission statement. The sentry guard takes orders exclusively from the commander of the guard or from the authority responsible for the change of guard (servizio di muta). In cases of particular danger and importance, the sentry guard can be doubled and the guard can be reinforced. The specific guard order (consegna) must define in written form the task and the use of arms as ruled by the regulations (infra 3), the placement of each sentry, the distance between them, the place of identification, and the line of security, etc. (Article 29). Every "sentry" is considered "inviolable" and "everyone, civilian or military, who commits the crime of violation of specific orders, resistance, threat or insult to a sentinel, or violence to a sentinel, can be arrested if taken in flagranti" (Article 31 (1)), but only by military police personnel. These crimes are 202 Legge 12 July 1999, No. 232, "Ratifica ed esecuzione dello statuto istitutivo della Corte internazionale, con atto finale ed allegati, adottato dalla conferenza diplomatica delle Nazioni Unite a Roma il 17 luglio 1998", Gazzetta Ufficiale 19 July 1999, No. 167, suppl. ord. 135. 203 By virtue of the laws on public security, other public and private guards for properties need a specific licence, and the person employing them needs specific authorisation by the prefecture (Arts. 133-138 et seqq. Regio Decreto 18 June 1931, No. 773, "Testo Unico delle leggi sulla pubblica sicurezza"). 204

Regolamento sul servizio territoriale e di presidio, Stato Maggiore della Difesa Pubblicazioni S.M.D. - G - 106, edited 1973. 205

Art. 1 Legge 18 April 1940, No. 494.

500

Jörg Luther

defined by the military criminal codes (Articles 140-143 C.P.M.P., Articles 138-140 C.P.M.G.), and can also be committed by civilians (Article 14 C.P.M.P.).206 Military personnel as well as civilians must respect a distance of 5 meters from the guard and must greet the guard (Article 31 (1) (c) and (d) Service Regulations 1973). The sentry guard's "general duties" include: "a) the task of observing and securing observance of the received specific order, b) watching with attention and without interruption under every circumstance and at all times; an alleged surprise is not a justification, but rather an aggravator of responsibility, c) remaining outside the sentry box except in case of pouring rain or excessive snow, wind, or sunshine, d) not abandoning, for any reason, the position fixed by the consignment (...), e) not at any time abandoning his arms (...), f) communicating with no one except the commander of guard or the official of the change of guard (...), g) not engaging in irresponsible conduct such as eating, smoking, or sitting down (...), h) in case of crimes (...) giving alarm, calling the official of change or the commander of guard, who shall intervene armed, accompanied by at least one other armed guard soldier, i) communicating all occurrences happening in his area of responsibility if he considers the intervention of the guard necessary or useful, 1) in urgent cases firing a shot in the sky, if normal means of communication are unlikely to be successful in reaching the commander" (Article 31 (2) Service Regulations 1973). Sentries who sleep or violate their duties under d) commit a specific military crime (Articles 118,119 C.P.M.P). 206

Art. 141 C.P.M.P. (Resistance, threat, or insult to a sentinel, lookout, or guard): "Any person subject to this code who fails to obey the order of a sentinel, lookout, or guard who is complying with orders received shall be punished with military confinement for up to one year. Any military person who threatens or insults a sentinel, lookout, or guard shall be punished with military confinement from one to three years."; Art. 142 C.P.M.P. (Violence to a sentinel, lookout, or guard): "Any person subject to this code who does violence to a sentinel, lookout, or guard shall be punished with military confinement from one to five years. If the violence was done with weapons or in concert by several persons, the punishment shall be military confinement from three to seven years."; Art. 143 C.P.M.P.: "Resistance to armed force. Any person subject to this code who does violence to or threatens an armed servicemember while he is acting in the performance of his duty, shall be punished with military confinement from six months to five years. If violence or threat of violence is done in concert by several persons, the punishment shall be increased. If violence or threat of violence were done in concert by more than five persons, or if even one of them uses weapons, or by more than ten persons even without weapons, the punishment shall be military confinement from three to seven years."; Art. 144 C.P.M.P. (Aggravating circumstances): "In the cases under Arts. 142 and 143, if violence consists of homicide, either murder or manslaughter, or in a most serious or serious personal injury, the punishments shall be as provided for in the penal code. However, the temporary sentence of detention is increased."

Military Law in Italy

501

The commander of the guard service, using not more than a third of the personnel of the guard, is authorised and, if the situation is taking place in the proximity of the guard, obliged to cooperate with the public law enforcement services in the following situations and ways: "a) stop and disarm individuals caught in flagrante delicto in the proximity of the guard; hold these persons and ensure that evidence of the crime is not altered or interfered with before the arrival of the carabinieri or the agents of public law enforcement, b) comply with requests of reinforcement made by the carabinieri or other agents of public security who are threatened while exercising their functions, c) if necessary, provide urgent assistance to victims of crimes or incidents, d) to accommodate and protect with adequate control in an appropriate location - exceptionally within the guard structure itself - people whose safety is threatened and who are asking for refuge, identifying them and disarming them if necessary (...), e) to give the alarm in case of fire (...)" (Article 43 Service Regulations 1973).

2. Performance of Guard Duties by Soldiers of Foreign Armed Forces There are no specific sources of law for the employment of soldiers of foreign armed forces for guard tasks because there seems to be no relevant practice. Insofar as NATO bases are subject to a foreign guard service, guard powers can be governed by international agreements and foreign service regulations, but must respect the limits of the Constitution (supra VI.2).

3. The Rules Concerning the Carrying and Use of Arms and other Military Equipment The use of weapons by soldiers is regulated mainly by Article 41 C.P.M.P.: "Anyone subject to this code who, in fulfilment of a service duty, uses or orders the use of weapons or other means of physical constraint in cases where such are necessary to repel an attack or to overcome resistance, is not punishable. The law provides for the other cases in which military personnel are authorised to use weapons or other means of physical constraint." In relation to military offences, Article 42 C.P.M.P. furthermore authorises guards to exercise selfdefence "to repel actual and unlawful force from himself or others, provided that the amount of force used in self-defence is commensurate with the offence." Article 43 C.P.M.P. defines the concept of violence: "For the purpose of military criminal law, violence includes murder, either attempted or actual, personal injury, battery, cruelty, and any attempt to inflict injury with a weapon."

502

Jörg Luther

The Service Regulations specify the rules for the use of arms by a sentry: "a) in case of violence exercised by anyone against him, the guard gives, if possible, the alarm {all' armi) and uses his arms within the limits imposed by the principle of necessity to repel the attack; b) a sentinal who has received an order not to allow anyone to approach the guard post or to impede their passing must demand of everyone approaching the security line that he halt, calling out "Alt! Chi va là!" (Stop! Who goes there?) and gesturing to indicate that the person should stop. In the case of an inspection or the approach of persons who want to be recognised, he allows for identification (...) while still vigorously warning: "Passi al largo!" (Stay where you are!). If the individual/s, notwithstanding the warning, continue to come closer to the security line, he gives the alarm, takes the position "pronti" (ready), repeats by voice and gesture the warning "Alto là!" (Stop there!) adding "o sparo" (or I will fire). If the individual/s has reached the security line, the sentinal fires a shot in the air and, if the line has been crossed, fires with the purpose of securing the observance of the order." (Article 32 (3)).

IX. Legal Reforms with Respect to Multinational Operations and Structures 1. Pertinent Legislation The legal reforms of Italian defence were deeply influenced by the new international and multinational missions of the armed forces as defined by the Law No. 331/2000 (supra II. 1). The new order of the armed forces must comply not only with the national democratic system (Article 1 of the Constitution), but also with the needs of international cooperation (Article 11 of the Constitution); constitutional values and principles must be respected in the organisation of multinational units and operations. The obligatory recruitment of soldiers is now authorised only in cases of declared States of War or of a "grave international crisis involving Italy in a direct way or because of its participation in an international organisation" (Article 2 (1) Law No. 331/2000). The laws made for the reorganisation of the Arma dei Carabinieri, which is the part of the armed forces under the administration of both the Ministry of Defence and the Ministry of the Interior, signal the shift from a model of "national defence" to a global concept of "international security". The Carabinieri "take part in military operations in Italy and abroad" and "take part in operations of military police abroad and cooperate, on the basis of international agreements and mandates, in the reconstitution of local police

Military Law in Italy

503

corps in areas where the armed forces are present for peace supporting missions".207 With regard to the new functions, since 1993 the participation in numerous multinational operations has been authorised by several special emergency legislation acts according to Article 77 of the Constitution. These decree-laws have been enacted, converted and, where necessary, reiterated for the following missions: (i)

"the humanitarian mission in Somalia and Mozambique" made "for the purposes of securing humanitarian aid to the population and to guarantee conditions of peace in the territories of those countries" 208 (IBIS 1, 2e Albatros 1, 2), (ii) "Italian participation in the NATO-operations in the former Yugoslavia, implementing UN Security Council Resolution No. 1031, for the restoration of conditions of peace in Bosnia-Herzegovina" (JOINT ENDEAVOUR 1996), (iii) "Italian participation in a group of temporary observers in Hebron (Temporary International Presence in Hebron - TIPH) for the peace purposes defined by the joint request of the Government of Israel and the Palestinian Authority made by the agreement signed at Jerusalem on 21 January 1997" (1997), (iv) "for the purposes of offering an Italian contribution to the re-establishment of peaceful cohabitation in Albania, and, especially, to guarantee the regular flow of humanitarian aid as well as the necessary conditions of security for the missions of the international organisations (...), for a period of three months from 10 April 1997, the participation of an Italian military contingent in the multinational protection force, implementing UN Security Council Resolution No. 1101 of 28 March 1997," (v) "the participation of an Italian military contingent of police observers in Brcko (Bosnia-Herzegovina) with the IPTF, for the purposes reaffirmed by UN Resolution No. 1088 on 12 December 1996," (vi) "the participation of a contingent of the Arma dei Carabinieri in the mission MSU (Multinational Specialized Unit) until 26 December 1998", and the "participation of personnel of the Arma dei Carabinieri, in the capa207

See Art. 1 Ugge 31 March 2000, No. 78 and Decreto Legislativo 5 October 2000, No. 297, "Norme in materia di riordino dell'Arma dei Carabinieri, a norma dell'articolo 1 della legge 31 marzo 2000, No. 78". 208

Decreti-Ugge 1 December 1993, No. 21; 10 March 1993, No. 56; 14 May 1993, No. 141; 13 July 1993, No. 223; 10 September 1993, No. 354; 12 November 1993, No. 450; 30 December 1993, No. 551; converted by Legge 22 February 1994, No. 125, Gazzetta Ufficiale 26 February 1994, No. 47.

504

Jörg Luther

city of trainers, in the mission MAPE (Multinational Advisory Police Element)", (vii) "beginning from 1 January 1999, and going through 31 December 1999, the participation of a contingent of 150 men in the OSCE-observers mission in Kosovo, implementing UN Security Council Resolution No. 1203 of 24 October 1998", and "the participation of a contingent of 250 militaries as envoys in Macedonia in support of the mission in Kosovo", (viii) "for the purposes of rendering assistance to the international missions for the support of peace and aid to the refugees of Kosovo (...) from 1 June until 31 December 1999, the participation of a further contingent of 1,800 military personnel in the operations in Macedonia (...)" and "from 1 April to 31 December 1999, the participation of a contingent of 2,500 military personnel in the multinational NATO force operating in Albania for the purposes of succouring the refugees in Kosovo and, especially, preparing camps and field hospitals, and to guarantee the regular flow and the distribution of humanitarian aid and the necessary conditions of security for the international missions of peace-support within the territory of Albania", (ix) "for the purposes set out by UN resolution No. 1264 of 15 September 1999 (...) the participation of a contingent of 600 military personnel in the peace mission in East Timor", (x) "for the purposes set out by UN Security Council Resolution No. 1320 of 15 September 2000, from 1 January until 30 June 2001, the participation of military personnel in the international peace mission in Ethiopia and Eritrea", (xi) "from 23 August 2001, to 31 December 2001, the participation of a military unit in the intervention in Macedonia, as decided by the NATO Atlantic Council on 22 August 2001", (xii) "from 18 November to 31 December 2001, to cover the expenses for the participation of military personnel in the multinational operation called "Enduring Freedom". This use of decree-laws has produced a number of ad hoc provisions regarding the economic and insurance treatment of military personnel, including imprisoned or missing soldiers, the issue of special passports, the use of logistic and consumer goods by foreign military contingents, the financing of the mission, etc. The most important and controversial decision is always that regarding whether the Criminal Code for Peace-time or War-time is applicable {supra VII.2.). The decree-laws issued on the occasion of the mission "Enduring Freedom", opting for the application of the Military Criminal Code for War-time, includ-

Military Law in Italy

505

ed a reform of that code. The war-time code is now applicable not only to "wars", but also to "armed conflicts", especially if those conflicts involve the commissioning of "expeditionary forces for armed military operations abroad" (Article 9 C.P.M.G.), including command, control, and support personnel operating within the national territory or in other countries, for all actions related to the service of the expedition. Furthermore, the reform abolished certain unconstitutional provisions and provided new penal sanctions for the violation of international humanitarian law (supra VII.2.h.). In the case of Enduring Freedom, jurisdiction over the renewed Military Criminal Law for War-time, including a long list of crimes of the Common Criminal Code committed by military personnel subject to the war-time code (Article 47 C.P.M.G.), has been attributed to the peace-time military court of Rome. The specialities of the military criminal procedure have been enhanced by the new form of trial based on video conference. The public prosecutor can now use video conference to complete his interrogations, as can the audience with the judge who decides upon the ratification of temporary measures of restriction on personal freedom, should "the needs of war or operation not permit the presentation of the arrested person to the proper military jurisdictional authority within an appropriate time" (Article 9 (4) Law No. 6/2002). "The arrest remains in force if the relevant report is made available within 48 hours to the public prosecutor, and the hearing for the ratification is made with the necessary participation of the defence counsel within the following 48 hours" (Article 9 (4)). The identity of the arrested person, and his freedom to communicate with the counsel in foro as well as a freely chosen counsel in locu custodíete must be certified by a military police official. These reforms have been enacted as temporary and transitory legislation until "the entry into force of a new organic law on military criminal matters" (Article 9 C.P.M.G.).

2. Probability of Future Reforms The "Committee for Legislation" of the first chamber of Parliament (Camera dei Deputati) has already stated the need for an "act of general legislation providing rules for all aspects of foreign missions of military units".209 209

Compare 24 January 2002, "Conversione in legge, con modificazioni, del decretolegge l o dicembre 2001, No. 421, recante disposizioni urgenti per la partecipazione di personale militare all'operazione multinazionale denominata [Enduring Freedom]. Modifiche al codice penale militare di guerra, approvato con regio decreto 20 febbraio 1941, No. 303" .

506

Jörg Luther

The current Parliament has seen various proposals for a statute containing "legal and economic regulation for the military personnel of contingents employed abroad for international missions". Preliminary inquiries have been tasked to a specific committee.210 No specific proposal has been made for the military criminal codes, notwithstanding the urging of the General Military Prosecutor of the Court of Appeal for further reform.211

3. Academic Discussion The legal questions involving the participation of Italian armed forces in multinational units and operations are discussed by a very small and elitist group of experts in military politics, and international, criminal, and constitutional law. A study completed in 1996 by the Centro Militare di Studi Strategici (CEMISS) pointed out the need for a clear rule governing the application to multinational missions of the C.P.M.P. and C.P.M.G. It stated furthermore that the decision mechanisms should be revised, and ordinary financing instruments should be created.212 A 2000 study by the Centre of High Studies for Defence (Centro Alti Studi per la Difesa) affirms that the creation of the "second pillar" of the European Union urges the revision of a large number of statutes and regulations dealing with the exchange of information, the restrictions on importation, exportation, and passage of weaponry and materials for "primarily" military use, military requisitions, embargo, etc. The experience of multinational peacekeeping oper-

210

See the summary of the proceedings of the Camera dei Deputati, 4th Permanent Commission of Defence on 16 October 2001: "Disciplina giuridica ed economica del personale militare dei contingenti impiegati all'estero in missioni internazionali, C. 1038 Ascierto ed abbinati, C. 1108 Molinari, C. 1142 Migliori e C. 1514 Lavagnini." 211

See V. Bonagura, Relazione per l'augurazione dell'anno giudiziario 2002, in: . The proposals of the Association of Military Magistrates - reported by A. Intelisano, Codici penali militari (2nd edn, Roma, 2001), pp. 666 et seqq - have been ignored. For the history of reform projects see Boursier Niutta, 'Elementi di Diritto Militare', supra η. 32, pp. 141 et seqq. The last Padova Convegno "Diritto e Forze Armate. Nuovi Impegni" - Padova, 30 November 2000, Prof. David Bruneiii, Università di Perugia, Prospettive el Diritto Penale Militare. 212

A. De Guttry, Le operazioni militari all'estero gestite al di fuori del sistema delle organizzazioni internazionali o nel suo ambito: problemi giuridici e organizzativi per le forze armate italiane (Roma, 1996).

Military Law in Italy

507

ations argues for a revision not only of the procedures and the organisation, but of the whole body of laws regulating the national defence.213

X. Select Bibliography 1. Pertinent Legislation Parliamentary

statutes:

Legge 28.7.1950, No. 624 "Istituzione del Consiglio Supremo di Difesa", Gazzetta Ufficiale 28.8.1950, No. 196. Legge 9.1.1951, No. 167 "Istituzione del Consiglio superiore delle Forze Armate", Gazzetta Ufficiale 24.3.1951, No. 69. Legge 10.4.1954, No. 13 "Stato degli ufficiali dell'Esercito, della Marina e dell'Aeronautica", Gazzetta Ufficiale 29.4.1954, No. 58. Legge 31.7.1954, No. 599 "Stato dei sottoufficiali dell'Esercito, della Marina e dell' Aeronautica", Gazzetta Ufficiale 29.04.1954, No. 98. Legge 12.11.1955, No. 1137 "Avanzamento degli ufficiali dell'Esercito, della Marina e dell'Aeronautica", Gazzetta Ufficiale 7.12.1937, No. 282. Legge 18.10.1961, No. 1168 "Norme sullo stato giuridico dei vice brigadieri e dei militari di truppa dell'arma dei carabinieri", Gazzetta Ufficiale 29.7.1961, No. 186. Legge 8.7.1961, No. 642 "Trattamento economico del personale dell'Esercito, della Marina e dell'Aeronautica destinato isolatamente all'estero presso Delegazioni o Rappresentanze militari ovvero presso enti, comandi o organismi internazionali", Gazzetta Ufficiale 29.7.1961, No. 186. Legge 25.1.1962, No. 26 "Norme sul vestiario dell'Esercito, della Marina e dell'Aeronautica", Gazzetta Ufficiale 15.2.1962, No. 41. Legge 12.12.1962, No. 1862 "Delega al Governo per il riordinamento del Ministero della Difesa e degli Stati Maggiori e per la revisione della legge sul reclutamento e della circoscrizione dei tribunali militari territoriali", Gazzetta Ufficiale 31.1.1963, No. 28. Legge 10.6.1964, No. 447 "Norme per i volontari dell'Esercito, della Marina e dell? aeronautica e nuovi organici dei sottoufficiali in servizio permanente delle stesse forze armate", Gazzetta Ufficiale 2.7.1964, No. 160. Legge 31.5.1975, No. 191 "Nuove norme per il servizio di leva", Gazzetta Ufficiale 13.6.1975, No. 154. Legge 24.10.1977, No. 801 "Istituzione e ordinamento dei servizi per le informazioni e la sicurezza e disciplina del segreto di Stato", Gazzetta Ufficiale 7.11.1977, No. 303.

213

C. Bongermino, Esigenze di rinnovamento della normativa giuridica e della organizzazione amministrativa nazionale per le esigenze di adeguamento ed armonizzazione del settore della Difesa nel contesto del consolidamento del pilastro europeo della difesa (Centro Alti Studi per La Difesa, 2000).

508

Jörg Luther

Legge 11.8.1978, No. 382 "Norme di principio sulla disciplina militare", Gazzetta Ufficiale 21.7.1978, No. 203. Legge 7.5.1981, No. 180 "Modifiche all'ordinamento giudiziario militare di pace", Gazzetta Ufficiale 8.5.1981, No. 125. Legge 10.5.1983, No. 212 "Norme sul reclutamento, gli organi e l'avanzamento dei sottoufficiali dell'Esercito, della Marina, dell? Aeronautica e della Guardia di Finanza", Gazzetta Ufficiale 23.5.1983, No. 138. Legge 11.12.1985, No. 765 "Ratifica ed esecuzione del I protocollo addizionale alle convenzioni di Ginevra del 12, agosto 1949, relativo alla protezione delle vittime dei conflitti armati internazionali, e del II protocollo addizionale alle convenzioni stesse, relativo alla protezione delle vittime di conflitti armati non internazionali, con atto finale, adottati a Ginevra 18 giugno 1977 dalla conferenza per la riaflermazione e lo sviluppo del diritto internazionale umanitario applicabile nei conflitti armati e aperti alla firma a Berna il 12 dicembre 1977", Gazzetta Ufficiale 27.12.1985, No. 303. Legge 24.12.1986, No. 958 "Norme sul servizio militare di leva e sulla ferma di leva prolungata", Gazzetta Ufficiale 25.1.1987, No. 11 suppl. ord. Legge 30.12.1988, No. 561 "Istituzione del consiglio della magistratura militare", Gazzetta Ufficiale 5.1.1989, No. 4. Legge 29.4.1983, No. 167 "Affidamento in prova del condannato militare", Gazzetta Ufficiale 10.5.1983, No. 126. Legge 24.12.1986, No. 958 "Norme sul servizio militare di leva e sulla ferma di leva prolungata", Gazzetta Ufficiale 15.1.1987, No. 11 suppl. ord. Legge 31.1.1992, No. 64 "Norme sugli organi del servizio della leva militare", Gazzetta Ufficiale 8.2.1992, No. 32. Legge 13.10.1994, No. 589 "Abolizione della pena di morte nel codice penale militare di guerra", Gazzetta Ufficiale 25.10.1994, No. 250. Legge 18.2.1997, No. 25 "Attribuzioni del Ministro della difesa, ristrutturazione dei vertici delle Forze armate e dell'Amministrazione della difesa", Gazzetta Ufficiale 24.2. 1997, No. 45. Legge 24.6.1998, No. 206 "Norme per le visite di parlamentari alle strutture militari", Gazzetta Ufficiale 2.7.1998, No. 152. Legge 8.7.1998, No. 230 "Nuove norme in materia di obiezione di coscienza", Gazzetta Ufficiale 15.7.1998, No. 163. Legge 20.10.1999, No. 380 "Delega al Governo per l'istituzione del servizio militare volontario femminile", Gazzetta Ufficiale 29.10.1999, No. 255. Legge 31.3.200, No. 78 "Delega al Governo in materia di riordino dell? Arma dei Carabinieri, del Corpo Forestale dello Stato, del Corpo della Guardia dei Finanza e della Polizia di Stato. Norme in materia di coordinamento delle forze di polizia", Gazzetta Ufficiale 4.4.2000. No. 79. Legge 7.4.2000, No. 106 "Ratifica ed esecuzione dell'accordo tra il Governo della Repubblica italiana, il Governo della Repubblica di Slovenia e il Governo della Repubblica ungherese sulla costituzione di una Forza terrestre multinazionale, fatto a Udine il 18 aprile 1998", Gazzetta Ufficiale 19.4.2000, No. 99.

Military Law in Italy

509

Legge 14.11.2000, No. 331 "Norme per l'istituzione del servizio militare professionale", Gazzetta Ufficiale 17.11.2000, No. 269. Legge 30.11.2000, No. 356 "Disposizioni riguardanti il personale delle Forze armate e delle forze di polizia", Gazzetta Ufficiale 4.12.2000, No. 283. Legge 8.1.2001, No. 2 "Abrogazione dell'articolo 3 della legge 31 maggio 1975, No. 191 in materia di arruolamento di minori", Gazzetta Ufficiale 18.1.2001, No. 14. Legge 6.3.2001, No. 64 "Istituzione del servizio civile nazionale", Gazzetta Ufficiale 22.3.2001, No. 68. Legge 31.1.2002, No. 6 "Conversione in legge, con modificazioni, del decreto-legge I o dicembre 2001, No. 421, recante disposizioni urgenti per la partecipazione di personale militare all'operazione multinazionale denominata "Enduring Freedom". Modifiche al codice penale militare di guerra, approvato con regio decreto 20 febbraio 1941, No. 303", Gazzetta Ufficiale 2.2.2002, No. 28.

Delegated governmental

legislation:

Regio Decreto 8.7.1938, No. 1415 "Approvazione dei testi della legge di guerra e della legge di neutralità", Gazzetta Ufficiale 15.9.1938, No. 211. Regio Decreto 18.8.1940, No. 1741 "Norme per la disciplina delle requisizioni", Gazzetta Ufficiale 2.1.1941, No. 1. Regio Decreto 20.2.1941, No. 303 "Approvazione del Codice penale militare di pace e del Codice penale militare di guerra", Gazzetta Ufficiale 6.5.1941, No. 107. Regio Decreto 9.9.1941, No. 1022 "Approvazione dell'ordinamento giudiziario militare", Gazzetta Ufficiale 27.9.1941, No. 229. Regio Decreto 9.9.1941, No. 1023 "Disposizioni di coordinamento, transitorie e di attuazione dei codici penali militari di guerra e di pace", Gazzetta Ufficiale 27.9.1941, No. 229. Regio Decreto 31.10.1942, No. 1611 "Testo unico delle leggi sulla disciplina dei cittadini in tempo di guerra", Gazzetta Ufficiale 18.1.1943, No. 13. Regio Decreto 10.2.1943, No. 306 "Disposizioni relative alla esecuzione della pena detentiva militare e attribuzioni dei giudici militari di sorveglianza", Gazzetta Ufficiale 6.5.1943, No. 105. Decreto del Presidente della Repubblica 14.2.1964, No. 237 "Leva e reclutamento obbligatorio nell'esercito, nella marina e nell'aeronautica", Gazzetta Ufficiale 5.5.1964, No. 110. Decreto del Presidente della Repubblica 12.5.1995, No. 195 "Attuazione dell'Art. 2 della legge 6.3.1992, No. 216 in materia di procedure per disciplinare i contenuti del rapporto di impiego del personale delle Forze di polizia e delle Forze armate", Gazzetta Ufficiale 27.5.1995, No. 122. Decreto del Presidente della Repubblica 12.5.1995, No. 196 "Attuazione dell'Art. 3 della legge 6.3.1992, No. 216 in materia di riordino dei ruoli, modifica alle norme di reclutamento, stato e avanzamento del personale non direttivo delle Forze armate", Gazzetta Ufficiale 27.6.1995, No. 148.

510

Jörg Luther

Decreto del Presidente della Repubblica 16.7.1997, No. 264 "Riorganizzazione dell'area centrale del Ministero della Difesa, a norma dell'Art. 1, lettera b) della legge 28.12.1995, No. 549", Gazzetta Ufficiale 9.8.1997, No. 185. Decreto del Presidente della Repubblica 16.7.1997, No. 265 "Disposizioni in materia di personale civile del Ministero della Difesa, a norma dell'Art. 1, lettera e) e g) della legge 28.12.1995, No. 549", Gazzetta Ufficiale 9.8.1997, No. 185. Decreto del Presidente della Repubblica 28.11.1997, No. 459 "Riorganizzazione dell' area tecnico industriale del Ministero della Difesa, a norma dell'Art. 1, comma 1, lettera c) della legge 28.12.1995, No. 549", Gazzetta Ufficiale 2.1.1998, No. 1. Decreto del Presidente della Repubblica 28.11.1997, No. 464 "Riforma strutturale delle Forze armate a norma dell'Art. 1 comma 1, lettere a), d) ed h) della legge 28.12.1995, No. 549", Gazzetta Ufficiale 5.1.1998, No. 3. Decreto del Presidente della Repubblica 30.12.1997, No. 490 "Riordino del reclutamento, dello stato giuridico e dell'avanzamento degli ufficiali, a norma dell'Art. 1 comma 97, legge 23.12.1996, No. 662", Gazzetta Ufficiale 22.1.1998, No. 17. Decreto del Presidente della Repubblica 30.12.1997, No. 504 "Adeguamento delle norme in materia di ritardi, rinvìi e dispense relativi al servizio di leva, a norma dell' Art. 1, comma 106 della legge 23.12.1996, No. 662", Gazzetta Ufficiale 2.2.1998, No. 26. Decreto del Presidente della Repubblica 30.12.1997, No. 505 "Armonizzazione del trattamento giuridico dei volontari al terzo anno di ferma breve con quello del personale militare in servizio permanente effettivo, a norma dell'articolo 1, comma 99, della legge 23 dicembre 1996, No. 662", Gazzetta Ufficiale 3.2.1998, No. 27. Decreto del Presidente della Repubblica 28.12.1998, No. 496 "Razionalizzazione delle procedure contrattuali dell'Amministrazione della difesa, a norma dell'articolo 54, comma 10, della legge 27 dicembre 1997, No. 449", Gazzetta Ufficiale 22.1.1999, No. 17. Decreto del Presidente della Repubblica 31.1.2000, No. 24 "Disposizioni in materia di reclutamento su base volontaria, stato giuridico e avanzamento del personale militare femminile nelle Forze armate e nel Corpo della guardia di finanza, a norma dell'Art. 1, comma 2, della legge 20 ottobre, No. 30", Gazzetta Ufficiale 16.2.2000, No. 38. Decreto del Presidente della Repubblica 27.6.2000, No. 214 "Disposizioni correttive ed integrative del decreto legislativo 28 novembre 1997, No. 464, recante riforma strutturale delle Forze armate, a norma dell'articolo 9, comma 2, della legge 31 marzo 2000, No. 78", Gazzetta Ufficiale 1.8.2000, No. 178. Decreto del Presidente della Repubblica 8.5.2001, No. 215 ("Disposizioni per disciplinare la trasformazione progressiva dello strumento militare in professionale, a norma dell'articolo 3, comma 1, della legge 14 novembre 2000, No. 331"), Gazzetta Ufficiale 11.6.2001, No. 133.

Governmental law-decrees on national or international missions converted into parliamentary statutes: Legge 11.3.1988, No. 74 "Conversione in legge del decreto-legge 23 gennaio 1988, No. 13 recante disposizioni per la copertura degli oneri finanziari conseguenti alla missione navale nel Golfo Persico", Gazzetta Ufficiale 15.3.1988, No. 62.

Military Law in Italy

511

Legge 19.10.1990, No. 298 "Conversione in legge, con modificazioni, del decreto-legge 23 agosto 1990, No. 247 recante provvedimenti urgenti in ordine alla situazione determinatasi nel Golfo Persico", Gazzetta Ufficiale 22.10.1990, No. 247. Legge 20.3.1991, No. 88 "Conversione in legge, con modificazioni, del decreto-legge 19 gennaio 1991, No. 17 recante ulteriori provvedimenti urgenti in ordine alla situazione determinatasi nell'area del Golfo Persico", Gazzetta Ufficiale 20.3.1991, No. 67. Legge 23.9.1992, No. 386 "Conversione in legge, con modificazioni, del decreto-legge 25 luglio 1992, No. 349 recante misure urgenti per contrastare la criminalità organizzata in Sicilia", Gazzetta Ufficiale 23.9.1992, No. 224. Legge 22.2.1994, No. 125 "Conversione in legge, con modificazioni, del decreto-legge 30 dicembre 1993, No. 551 recante disposizioni urgenti relative allo svolgimento della missione umanitaria in Somalia e Mozambico", Gazzetta Ufficiale 26.2.1994, No. 47. Legge 27.10.1994, No. 599 "Conversione in legge del decreto-legge 29 agosto 1994, No. 521 recante disposizioni urgenti per l'impiego delle Forze armate in attività di controllo del territorio nazionale, nonché in missioni umanitarie all'estero", Gazzetta Ufficiale 29.10.1994, No. 254. Legge 8.8.1996, No. 428 "Conversione in legge, con modificazioni, del decreto-legge 1.7.1996, No. 346, concernente partecipazione italiana alla missione di pace in Bosnia", Gazzetta Ufficiale 19.8.1996, No. 193. Legge 23.12.1996, No. 653 "Conversione in legge, con modificazioni, del decreto legge 23 ottobre 1996, No. 554 recante disposizioni per la graduale sostituzione del personale delle Forze armate impiegato in attività di controllo del territorio della regione siciliana, nonché per l'adeguamento di strutture e funzioni connesse alla lotta contro la criminalità organizzata", Gazzetta Ufficiale 21.12.1996, No. 299. Legge 25.3.1997, No. 72 "Conversione in legge, con modificazioni, del decreto-legge 31 gennaio 1997, No. 12, recante partecipazione italiana alla missione di pace nella città di Hebron. Proroga della partecipazione italiana alla missione in Bosnia-Erzegovina", Gazzetta Ufficiale 28.3.1997, No. 73. Legge 20. 6. 1997, No. 174 "Conversione in legge, con modificazioni, del decreto-legge 24 aprile 1997, No. 108 recante partecipazione italiana alle iniziative internazionali in favore dell'Albania", Gazzetta Ufficiale 23.6.1997, No. 144. Legge 25.7.1997, No. 239 "Conversione in legge, con modificazioni, del decreto-legge 5 giugno 1997, No. 144 recante autorizzazione alla partecipazione di un contingente dell'Arma dei carabinieri alla Forza di polizia internazionale (IPTF) in Bosnia", Gazzetta Ufficiale 28.7.1997, No. 239. Legge 28.8.1997, No. 282 "Conversione in legge del decreto-legge 14 luglio 1997, No. 215, recante impiego di contingenti delle Forze armate in attività di controllo del territorio in Provincia di Napoli", Gazzetta Ufficiale 2.9.1997, No. 204. Legge 13.3.1998, No. 42 "Conversione in legge, con modificazioni, del decreto-legge 13 gennaio 1998, No. 1, recante disposizioni uregnti in materia di cooperazione tra Italia e Albania nel settore della difesa, nonché proroga della permanenza di contingenti militari italiani in Bosnia-Erzegovin, Proroga della partecipazione italiana al gruppo di osservatori temporanei ad Hebron", Gazzetta Ufficiale 14.3.1998, No. 61. Legge 3.8.1998, No. 270 "Disposizioni urgenti in materia di partecipazione militare italiana a missioni internazionali", Gazzetta Ufficiale 10.8.1998, No. 185.

512

Jörg Luther

Legge 29.3.1999, No. 77 "Conversione in legge, con modificazioni, del decreto-legge 28 gennaio 1999, No. 12 recante disposizioni urgenti relative a missioni internazionali di pace", Gazzetta Ufficiale 30.3.1999, No. 74. Legge 18.6.1999, No. 186 "Conversione in legge, con modificazioni, del decreto-legge 21 aprile 1999, No. 110, recante autorizzazione all'invio in Albania ed in Macedonia di contingenti italiani nell'ambito della missione NATO per compiti umanitari e di protezione militare, nonché rifinianzamento del programma italiano di aiuti all'Albania e di assistenza ai profughi", Gazzetta Ufficiale 22.6.1999, No. 144. Legge 2.8.1999, No. 269 "Conversione in legge, con modificazioni, del decreto-legge 17 giugno 1999, No. 180 recante disposizioni urgenti in materia di proroga della partecipazione a missioni internazionali nei territori della ex Jugoslavia, in Albania e ad Hebron, nonché autorizzazione all'invio di un'ulteriore contingente di militari dislocati in Macedonia per le operazioni di pace nel Kosovo", Gazzetta Ufficiale 9.6.1999, No. 185. Legge 22.12.1999, No. 487 "Conversione in legge, con modificazioni, del decreto-legge 25 ottobre 1999, No. 371, recante proroga della partecipazione italiana a missioni internazionali di pace, nonché autorizzazione all'invio di un contingente di militari in Indonesia ed in Australia per la missione internazionale di pace a Timor Est", Gazzetta Ufficiale 24.12.1999, No. 301. Legge 7.3.2000, No. 44 "Conversione in legge, con modificazioni, del decreto-legge 7 gennaio 2000, No. 1 recante disposizioni urgenti per prorogare gli interventi in favore dell'Albania e la partecipazione militare italiana a missioni internazionali di pace", Gazzetta Ufficiale 7.3.2000, No. 55. Legge 10.8.2000, No. 228 "Conversione in legge del decreto-legge 19 giugno 2000, No. 163, recante disposizioni urgenti in materia di proroga della partecipazione militare italiana a missioni internazionali di pace", Gazzetta Ufficiale 19.8.2000, No. 193. Legge 29.8.2001, No. 339 "Conversione in legge, con modificazioni, del decreto-legge 19 luglio 2001, No. 294, recante proroga della partecipazione militare italiana a missioni internazionali di pace, nonché prosecuzione dei programmi delle Forze di polizia italiane in Albania", Gazzetta Ufficiale 30.8.2001, No. 201. Legge 16.11.2001, No. 406 "Conversione in legge, con modificazioni, del decreto-legge 18 settembre 2001, No. 348, recante disposizioni urgenti per la partecipazione militare italiana alla missione internazionale di pace in Macedonia", Gazzetta Ufficiale 17.11. 2001, No. 268. Legge 31.1.2002, No. 6 "Conversione in legge, con modificazioni, del decreto-legge 1 dicembre 2001, No. 421, recante disposizioni urgenti per la partecipazione di personale militare all'operazione multinazionale denominata "Enduring Freedom. Modifiche al codice penale militare di guerra, approvato con regio decreto 20 febbraio 1941, No. 303", Gazzetta Ufficiale 2.2.2002, No. 28. Legge 27.2.2002, No. 15 "Conversione in legge, con modificazioni, del decreto-legge 28 dicembre 2001, No. 451, recante disposizioni urgenti per la proroga della partecipazione italiana ad operazioni militari internazionali", Gazzetta Ufficiale 27.2.2002, No. 49.

Military Law in Italy

513

Regulations: Regio Decreto 11.7.1941, No. 1161 "Norme relative al segreto militare", Gazzetta Ufficiale 30.10.1941, No. 257. Decreto del Presidente della Repubblica 4.11.1979, No. 691 "Regolamento che disciplina l'attuazione della rappresentanza militare", Gazzetta Ufficiale 12.1.1980, No. 11. Decreto del Presidente della Repubblica 2.9.1985, No. 1008 "Approvazione del nuovo elenco delle imperfezioni e delle infermità che sono causa di non idoneità al servizio militare", Gazzetta Ufficiale 21.4.1986, No. 92. Decreto del Presidente della Repubblica 18.7.1986, No. 545 "Approvazione del regolamento di disciplina militare ai sensi dell'Art. 5, primo comma, della legge 11 luglio 1978, No. 382", Gazzetta Ufficiale 15.9.1986, No. 214. Decreto Ministeriale 14.6.1995, No. 519 "Regolamento concernente le categorie di documenti sottratti al diritto di accesso", Gazzetta Ufficiale 6.12.1995, No. 285. Decreto Ministeriale 23.12.1997, "Strutture ordinative dell'Ufficio di gabinetto e dell'Ufficio del Segretario generale del Ministero della Difesa", Gazzetta Ufficiale 6.4.1998, No. 80. Decreto del Presidente della Repubblica 25.10.1999, No. 556 "Regolamento di attuazione dell'articolo 10 della Legge 18 Febbraio 1997, No. 25 concernente le attribuzioni dei vertici militari", Gazzetta Ufficiale 18.5.2001, No. 114. Decreto Ministeriale 4.4.2000, No. 114 "Regolamento recante norme in materia di accertamento dell'idoneità al servizio militare", Gazzetta Ufficiale 10.5.2000, No. 107. Decreto del Presidente della Repubblica 8.2.2001, No. 139 "Recepimento del provvedimento di concertazione per le Forze Armate relativo al biennio economico 2000-2001", Gazzetta Ufficiale 21.4.2001, No. 93. Decreto del Presidente della Repubblica 14.5.2001, No. 241 "Regolamento di organizzazione degli uffici di diretta collaborazione del Ministro della Difesa", Gazzetta Ufficiale 26.6.2001, No. 146.

2. Selected Books and Articles D. Angrisani et al., Elementi di diritto amministrativo militare, Quaderni della Rassegna dell'Arma dei Carabinieri, Roma 2001. V. Bachelet, Disciplina militare e ordinamento giuridico statale, Milano, Giuffré, 1962. A. Baldanza, La difesa, in: S. Cassese, a cura di, Trattato di diritto amministrativo Diritto amministrativo speciale, Milano, Giuffré, 2000. R. Balduzzi. Principio di legalità e spirito democratico nell'ordinamento delle forze armate, Milano, Giuffré 1988. A. Barone, La difesa nazionale nella Costituzione, Democrazia e diritto 1987, 662 ff.; 1988, Iff. E. Bettinelli/E. Rossi, Art. 52, in: G. Branca - A. Pizzorusso, Commentario della Costituzione, Bologna-Roma: Zanichelli 1992. N. Bobbio, Il problema della guerra e le vie della pace, Bologna: Il Mulino 1979.

514

Jörg Luther

M. Bon Valsassina, Il ripudio della guerra nella Costituzione italiana, Padova: Cedam 1955. P. Bonetti, Ordinamento della difesa nazionale e costituzione italiana, Milano: Giuffré 2000. E. Boursier Niutta et al., Elementi di diritto militare. Aspetti costituzionali, Quaderni della Rassegna dell'Arma dei Carabinieri, Roma 1999. D. Brunelli/G. Mazzi, Diritto penale militare 2d ed. Milano: Giuffré 1998. A. Cassese, Wars forbidden and Wars allowed by the Italian Constitution, Studi in onore di G. Balladore Pallien, Milano: Giuffré 1978, II, 120ss. G. Cellamare, Le operazioni di peace-keeping multifunzionali, Torino: Giappichelli 1999. L. Chiefli, Il valore costituzionale della pace, Napoli: Jovene 1990. S. Cotta, Dalla guerra alla pace, Milano: Rusconi 1989. A. De Guttry, Le missioni delle Forze armate italiane fuori area, Milano: Giuffré 1997. idem, Le operazioni militari all'estero gestite al di fuori del sistema delle organizzazioni internazionali o nel suo ambito: problemi giuridici e organizzativi per le forze armate italiane, Roma: Cemiss 1996. idem/F. Pagani et. al., La crisi albanese del 1997, Milano: Giuffré 1999. G. De Vergottini, Indirizzo politico e della difesa e sistema costituzionale, Milano 1971. idem et. al., Costituzione della difesa e stati di crisi per la difesa nazionale, Roma: Cemiss 1991. M. Dogliani/S. Sicardi et. al., Diritti umani e uso della forza, Torino: Giappichelli 2001. G. Ferrari, Guerra-stato di guerra (diritto costituzionale), in: Enciclopedia del diritto, vol. XIX, Milano: Giuffré 1970, 816ff. C. Jean, L'ordinamento della difesa in Italia, Padova: Cedam 1989. idem, Il Ministero della difesa, Roma 1991. S. Labriola, Il Consiglio supremo di difesa nell'ordinamento costituzionale italiano, Milano 1973. G. Landi, Forze armate, in: Enciclopedia del dirittto, vol. XVIII, Milano: Giuffré, 1969, 21ff.

idem, Ordinamento militare, in: Enciclopedia del diritto, vol. XXX, Milano: Giuffré 1980, 112ff. V. Lippolis, La crisi del Golfo in Parlamento, Giurisprudenza costituzionale 1991, 1727ÍT. A. Marazzi, Nozioni di diritto bellico, Torino: Giappichelli 1989. S. Marchisio, Le basi militari nel diritto internazionale, Milano 1984. A. Migliazza et. al., Le forze multinazionali nel Libano e nel Sinai, Milano: Giuffré 1988. G. Motzo, Il comando delle Forze armate e la condotta dei regimi di emergenza nel sistema costituzionale italiano, Milano 1957. V. Poli/V. Tenore et al., I procedimenti amministrativi tipici e il diritto di accesso nelle Forze Armate, Milano: Giuffré 2002.

Military Law in Italy

515

S. Riondato, Il nuovo ordinamento disciplinare delle Forze armate, Padova, Cedam, 1995. idem, Diritto penale militare, Padova: Cedam 1998. idem et al., Diritto e Forze Armate. Nuovi impegni, Padova: Cedam 2001. P. Rivello, Procedura e ordinamento giudiziario militare, Torino: Giappichelli 2000. N. Ronzitti, Diritto internazionale dei conflitti armati, 2d ed. Torino: Giappichelli, 2001. idem et al., Lo Status delle Forze armate italiane in operazioni "fuori area" condotte sotto l'egida di organizzazioni internazionali, Roma: Cemiss 1996. idem et al., Comando e controllo nelle forze di pace e nelle coalizioni, militari, Milano, 1999. idem et. al., Nato, conflitto in Kosovo e costituzione italiana, Milano: Giuffré 2000. M. Scudiero, Aspetti dei poteri necessari per lo stato di guerra, Napoli: Jovene 1969. R. Venditti, Il processo penale militare e il nuovo codice di procedura penale, 4th ed. Milano: GiufTré 1997. Idem, I reati contro il servizio e contro la disciplina militare, 4th ed. Milano: Giuffré 1995. Idem, Il diritto penale militare nel sistema penale italiano, 7d ed. Milano: Giuffré 1997.

Chapter 8 Military Law in Luxembourg Frédéric D o p a g n e 1

Table of Contents I. The Historical and Political Background of the Military Law System . . . . 1. Parliamentary Control and the Dignified Role for the Individual Soldier 2. Democratic Control and Rights and Duties of Soldiers II. Basic Rules Concerning the Use of Armed Forces 1. The Mission of the Armed Forces 2. Permissible Operations 3. Limitations on Operations Undertaken Jointly with the Armed Forces of Another Country III. Constitutional Powers 1. The Powers of the Head of State and of the Government 2. The Participation of Parliament in the Decision to Deploy the Armed Forces 3. The Functions of the Minister of Defence 4. The Role of the Military Leadership 5. Parliamentary Control a. The Parliament's Powers to Control the Armed Forces b. Special Forms of Parliamentary Control over the Military c. Court of Auditors and Comparable Institutions IV. The Structure of the Armed Forces V. Soldiers'Rights and Duties 1. Restrictions of Fundamental Rights of Soldiers a. General Aspects b. Political Neutrality of Soldiers c. Other Fundamental Rights and their Restrictions d. Conscientious Objection 2. Legal Obligations of Soldiers 3. The Power of Command and the Duty to Obey 4. Social Rights of Soldiers and their Families 5. Rules Governing Working Time a. Working Time and Compensation for Overtime b. Holidays and Special Leave 6. Legal Remedies, in Particular Rights to File a Complaint 7. Rights of Institutional Representation 1

Dr. University of Louvain.

518 518 520 520 520 521 523 524 524 526 527 527 527 527 528 528 528 529 529 529 529 530 530 530 531 532 533 533 534 534 534

518

Frédéric Dopagne

VI. The Relationship of the Superior to Subordinate Personnel 1. Legal Rules Concerning the Relationship between Superior and Subordinate a. The Position of the Superior b. The Duties of the Superior 2. Subordination of Soldiers to the Command of a Superior of Foreign Armed Forces 3. Service Regulations and their Legal Nature VII. Sanctions 1. Disciplinary Law a. Disciplinary Power b. Criminal Law and Disciplinary Law c. The Purpose of Disciplinary Law d. Disciplinary Measures e. Disciplinary Law and the European Convention on Human Rights . . f. The Disciplinary Procedure and Legal Remedies g. Representation of the Armed Forces during Disciplinary Proceedings h. Measures of Commendation 2. Military Criminal Law a. General Issues b. Relation to General Criminal Law c. Military Criminal Courts d. Relationship between Civilian and Military Courts e. Special Rules with Respect to Legal Procedure and the Sanctions System f. Military Prosecutors g. Justification by Superior Orders h. Sanctions for Non-Compliance with International Humanitarian Law i. Ratification of the Rome Statute of the International Criminal Court VIII. Regulations Governing Guard Duties IX. Legal Reforms with respect to Multinational Operations and Structures . . 1. Pertinent Legislation 2. Probability of Future Reforms 3. Academic discussion X. Select Bibliography 1. Pertinent Legislation 2. Articles

535 535 535 535 535 536 536 536 536 537 537 538 538 538 539 539 539 539 540 540 540 541 541 541 541 542 543 543 543 544 545 545 545 545

I. The Historical and Political Background of the Military Law System 1. Parliamentary Control and the Dignified Role for the Individual Soldier T h e military law system of the G r a n d Duchy has not been heavily influenced by political or historical circumstances regarding the specific issues of parliamentary control of the army a n d of ensuring a dignified role for the individual soldier. On the other hand, it is not uninteresting to recall in a few words some

Military Law in Luxembourg

519

historical and political events that have played a role in the definition of the functions of the armed forces. In an advisory opinion delivered in 1963, the Conseil d'État noted that "/e Luxembourg cherche son armée". Today, this is no longer true. The Armed Forces have indeed become a well-established institution, notwithstanding its small size. The tasks assigned to it have recently been determined by the Parliament (see below, II. 1.); this indicates that the armed forces' place within the state is clearly recognised. Of course, the military tradition may seem quite young compared to that of certain European powers, but that is the consequence of the neutrality observed by the country since the Treaty of London of 11 May 1867. As in the case of Belgium, the two World Wars proved that, for Luxembourg, neutrality did not afford sufficient protection. That status was accordingly abandoned in 1948. Since then, Luxembourg has centred its defence policy around participation in military alliances and common security structures. In particular, it has signed the Treaty of Brussels of 17 March 1948 (WEU), and the Treaty of Washington of 4 April 1949 (NATO). NATO is still considered to be the framework within which the security of Luxembourg must be achieved.2 Because of its naturally limited means, the Grand Duchy is forced to cooperate closely with other countries in defence matters,3 and is obviously favourable to the building of a European common policy of security and defence at the level of the European Union. One major challenge facing the armed forces at present is recruiting. Conscription was replaced in 1997 by a system relying on voluntary service.4 In order to make the armed forces attractive, many advantages are offered to the volunteers (employment privileges in public sectors such as the postal service, customs, etc.,5 as well as advantages of a social or financial nature). A difficulty

2

See, for instance, Ministère des Affaires étrangères, du Commerce extérieur, de la Coopération, de l'Action humanitaire et de la Défense, Rapport d'activité 2000, p. 122. 3

See below, II.3, as to the provisions of Article 2 (2) of the Law of 27 July 1992, regarding the integration or the uniting of the contingents of Luxembourg with the contingents of another state contributing to the peace-keeping operation. In particular, the BelgiumLuxembourg military cooperation "reste la pièce maitresse pour l'exécution des missions internationales de l'armée Luxembourgeoise. Sans ces liens tissés au cours des dernières années, la participation Luxembourgeoise sur le terrain à l'étranger serait impossible faute d'une logistique suffisante" (Ministère des Affaires étrangères, du Commerce extérieur, de la Coopération, de l'Action humanitaire et de la Défense, Rapport d'activité 2000, p. 123). 4

See the current Article 6 of the Law of 23 July 1952, concerning the military organization, as modified by the Law of 2 August 1997 (Mémorial - the Official Journal of the Grand Duchy - 1997, A-59, p. 1727): "L'armée se recrute par voie d'engagement volontaire". 5

See the current Article 25 of the Law of 23 July 1952, concerning military organization, as modified by the Law of 2 August 1997.

520

Frédéric Dopagne

nevertheless remains with regard to the sending of those volunteers abroad, because of special constraints. This last problem will be addressed in detail below (II. 2).

2. Democratic Control and Rights and Duties of Soldiers The Constitution does not assign any particular democratic role to the armed forces. Neither the government nor the public seem to expect one. It is true that the armed forces, though well-established, is still considered, as in Belgium and France, as "la Grande Muette". It is subordinated to the political powers and plays no political role.

II. Basic Rules Concerning the Use of Armed Forces 1. The Mission of the Armed Forces The mission entrusted to the armed forces is not determined by the Constitution, but by the law - in this case, by quite recent legislation. Indeed, the Law of 23 July 1952, concerning military organisation, did not originally contain any definition of the mission of the armed forces. Admittedly, such precision was probably not necessary during the Cold War, as no one ever doubted that the role of forces was to contribute to the collective defence through NATO structures. But the world has changed, including threats and methods of maintaining security. In these new circumstances, it became desirable to specify the missions of the armed forces.6 On 2 August 1997, the Parliament enacted a law which modifies, among others, the Law of 23 July 1952.7 The new Article 2 of the Law of 23 July 1952, states that the armed forces shall carry out the following missions, under the authority of the Minister of the Public Forces:8

6

Exposé des motifs de la loi du 2 août 1997, Documents parlementaires, 1995-1996, No. 4158.

session

7 Loi du 2 août 1997 portant réorganisation de l'armée et modification de la loi du 27 juillet 1992 relative à la participation du Grand-Duché de Luxembourg à des opérations pour le maintien de la paix (OMP) dans le cadre d'organisations internationales, Mémorial 1997, A-59, p. 1728. 8

In its advisory opinion, the Conseil d'État criticized the reference to the Minister of the Public Forces authority. Such a reference might indeed be contrary to Article 37 of the Constitution, which gives the Grand Duke, and not the minister, the power to com-

Military Law in Luxembourg

521

1. at the national level: a) take part in the defence of the territory of the Grand Duchy in case of armed conflict; b) take part in the protection of the homesteads and living areas of the national territory; c) provide assistance to the other public services and to the population in case of major public interest and of disasters; 2. at the international level: a) contribute to collective or common defence within the framework of the international organisations of which the Grand Duchy is a member; b) take part, within the same framework, in humanitarian and rescue tasks, in peace-keeping tasks, and in tasks of combat forces in crisis management, including peace-making;9 c) take part in the verification and control of the implementation of the international treaties to which Luxembourg is a party.

2. Permissible Operations Crisis Management Abroad, Humanitarian Aid at Home and Abroad, Combined Operations with Civilian Aid Organisations, Cooperation between the Armed Force and Other Governmental Authorities, States of Emergency at Home, Natural Disasters or Humanitarian Catastrophes at Home, Evacuation of a State's Nationals, and the Use of the Armed Force in Other Cases are all permissible under the Constitution, but they must be compatible with the armed force's official mission (see above); prima facie, they do not seem to raise any problem in this respect. On the other hand, a major constraint deserves some consideration. It is a well-established principle in Luxembourg that the volunteers serving in the armed forces cannot be compelled to take part in operations abroad, except in the cases of application of Article 5 of the Treaty of Washington (NATO) and of the Treaty of Brussels (WEU). For any other kind of mission, their consent

mand the army (avis du 22 avril 1997, Documents parlementaires, session 1995-1996, No. 4158-4). Similar questions have been raised in Belgium following World War II practice and the Law of 20 May 1994. 9

The wording of the law is, in this respect, the same than that of Article 17 (2) of the Treaty on the European Union, which defines the so-called "Petersberg Tasks". For this reason we give here the terms of Article 17 (2).

522

Frédéric Dopagne

is required.10 In the area of peace-keeping operations, this principle is reflected in the Law of 27 July 1992 (LOMP),11 Article 3 (1) of which reads as follows: "The participants in a peace-keeping operation shall be chosen on the basis of voluntary service." However, Article 3 (2) of the same law gives the Minister of the Public Forces the power, if needed, to designate authoritatively, in order to take part in peace-keeping operations, the regular military personnel as defined by Article 7 (1) of the law on the re-organisation of the army (actually, it is Article 7 (1) of the law concerning the military organisation - 23 July 1952 - , as modified by the law on the re-organisation of the army - 2 August 1997).12 The new Article 7 (1) of the law concerning the military organisation states that the regular military personnel includes -

officers non-commissioned officers corporals.

Moreover, Article 2 in fine of the Law of 23 July 1952, as modified by the Law of 2 August 1997, adds that the military personnel of Article 7 (1) can be deployed authoritatively and without their consent for the purposes of the operations referred to in Article 2 (2) (b) (these are humanitarian and rescue tasks, peace-keeping tasks, and tasks of combat forces in crisis management, including peace-making).13

10

Conseil d'État, avis du 22 avril 1997, Documents parlementaires, session 1995-1996, No. 4158-4; exposé des motifs de la loi du 2 août 1997, ibid., session 1995-1996, No. 4158, quoting the practice in Kurdistan and Croatia; avis de la Chambre des fonctionnaires et employés publics du 4 mai 1992, ibid., session 1991-1992, No. 3607-01 ("Est définitivement révolue l'époque absolutiste où le pouvoir pouvait librement disposer de ses sujets armés"). 11 Law on the participation of the Grand Duchy of Luxembourg in peace-keeping operations within the framework of international organizations (loi relative à la participation du Grand-Duché de Luxembourg à des opérations pour le maintien de la paix ( OMP) dans le cadre d'organisations internationales), Mémorial 1992, A-56, p. 1744. 12

Text as modified by the Law of 2 August 1997. It should be noted that the Law of 31 May 1999, which replaces the former police and the former gendarmerie by a new police grand-ducale, has added a third paragraph to Article 3 LOMP, providing for the possible automatic deployment of members of the police grand-ducale for operations of a police character (Mémorial 1999, A-87, p. 1802). 13 The Conseil d'État has wondered why the solution had not been extended to the missions of Article 2 (2) (c) (i.e. missions of verification and control of the implementation of international treaties) (avis du 22 avril 1997, see supra n. 10). It is true that those operations usually take place abroad.

Military Law in Luxembourg

523

The two provisions (Article 3 (2) LOMP and Article 2 in fine of the Law of 23 July 1952) do not have the same scope. For instance, the latter includes the humanitarian missions while the former, if one refers to the definition of the peace-keeping operations laid down in Article 1 (3) LOMP,14 and to the travaux préparatoires,15 seems to exclude them. The scope of the operations for which the Minister of Defence is entitled to deploy regular soldiers authoritatively and without their consent is hence larger in the Law of 1952 than in the Law of 1992. The conflict between these laws cannot however be settled on the basis of a temporal criterion since both provisions result from the same modification (i.e. the Law of 2 August 1997). Since the forced sending of volunteers abroad has an exceptional character, the volunteers' consent would seem to be required for all the operations referred to in Article 2, 2, b) of the Law of 23 July 1952, and not only for the peace-keeping operations (strictly speaking) which are mentioned in Article 1 (3) LOMP. It is important to note that such a system raises problems for the Government with regard to the planning, the preparation and the implementation of operations, as the scale of the operation is subject to the uncertain individual decisions of the volunteers. It is conceivable that Luxembourg might be forced to abandon a contribution originally promised if an insufficient number of soldiers volunteer for the mission. In order to enable the Grand Duchy to fulfil its international obligations, the function of regular corporal (see above) has been created, and the maximum number of officers and NCOs has been increased.16 The military personnel who are in a position to be deployed by the Minister of Defence authoritatively and without consent are thus an important category.

3. Limitations on Operations Undertaken Jointly with the Armed Forces of Another Country No limitations exist in this regard, either in the Constitution or in the legislation. On the contrary, the possibility of joint operations is explicitly mentioned in the Law of 27 July 1992. Article 2 (2) of this law states that the Government

14

The "peace-keeping operations" referred to in that law are the missions of a civil or military character, the purpose of which is, among others, the prevention, the limitation, the reduction or the cessation of hostilities, whether internal or international, by the intervention of a third party with the consent of the parties directly concerned. 15

Rapport de la Commission de la Force publique, Documents parlementaires, 1991-1992, No. 3607/04.

16

session

See the new Article 9 of the Law of 23 July 1952, as modified by the Law of 2 August 1997.

524

Frédéric Dopagne

in Council may decide to integrate or unite the contingents of Luxembourg with those of another state or of a group of states {Le Gouvernement en Conseil peut décider d'intégrer ou de rattacher les contingents luxembourgeois à ceux d'un autre État ou d'un groupe d'États). The travaux préparatoires confirm that this provision has been introduced "in anticipation of the future European security policy."17 It must nevertheless be added that, in practice, the power to make this decision has been delegated to the Commander of the Armed Forces by virtue of the Grand Ducal regulations authorising the participation of Luxembourg.18

III. Constitutional Powers 1. The Powers of the Head of State and of the Government Article 37 of the Constitution states that: "(...) The Grand Duke commands the armed forces; he declares war and the cessation of war upon the authorisation of the Chamber given by a vote expressed in the conditions of Article 114 (5) of the Constitution" {Le Grand-Duc commande la force armée; il déclare la guerre et la cessation de la guerre après y avoir été autorisé par un vote de la Chambre émis dans les conditions de l'article 114 (5) de la Constitution).19 Article 114 (5) requires that at least three quarters of the Members of the Parliament be present and that the proposed resolution get at least two thirds of the votes. It is neither desirable nor likely that this provision on the declaration of war will be used in the future. In present-day practice, Luxembourg takes part in possible armed conflicts only within the framework of multinational operations initiated by international organisations. Even if it is not questionable whether

17

Rapport de la Commission de la Force publique, supra n. 15.

18

See, e.g., in the case of IFOR: Règlement grand-ducal du 8 décembre 1995 concernant la participation de l'Armée luxembourgeoise aux forces de paix à déployer en ex-Yougoslavie {Mémorial 1995, A-96, p. 2260), Article 3, al. 2: "Pour les besoins opérationnels, les équipes de renforcement pourront être rattachées à une ou des unités militaires étrangères. Le commandant de l'armée sera autorisé à conclure à cette fin des accords particuliers avec les autorités militaires concernées". The contingent of Luxembourg has operated under the operational command of the Belgian battalion. 19 See the Arrêté ministériel du 6 octobre 2000 autorisant Son Altesse Royale le GrandDuc Héritier Henri à porter le titre de Général de l'Armée luxembourgeoise {Mémorial 2000, A-101, p. 2242).

Military Law in Luxembourg

525

the Grand Duke retain the full command of the armed force in those circumstances as well, the procedure laid down in Article 37 of the Constitution is then superseded by the one of the Law of 27 July 1992, which can be summarised as follows: Article 1 (1): "The Government is authorised to implement the participation of the Grand Duchy of Luxembourg in peace-keeping operations which are carried out within the framework of international organisations of which the Grand Duchy of Luxembourg is a member." Article 1 (2): "Participation is decided upon by the Government in Council after consultation of the competent commissions of the Chamber of Deputies." Article 2 (3): "For each peace-keeping operation in which Luxembourg takes part, a Grand Ducal regulation, to be adopted after consultation of the Conseil d'État and of the Working Commission of the Chamber of Deputies, determines the details of implementation of the present law."20 These provisions call for some remarks. Prima facie, it is up to the Government to decide on the participation as a matter of principle, and a Grand Ducal regulation implements that decision once it has been made. One must however take actual practice into account. Even if the practice has not always been entirely consistent (especially early on), it appears that since 1996 the decision to participate or not to participate has been taken in the Grand Ducal regulation.21 The nuance of meaning is more important than one might think. Under the Constitution, it is indeed up to the Grand Duke to decide on participation.22 It

20

According to the French text: "(...) un règlement grand-ducal à prendre sur avis obligatoire du Conseil d'État et de la Commission de travail de la Chambre des Députés détermine les modalités d'exécution de la présente loi". An "avis" (opinion) of the Conseil d'État is naturally not binding, which is confirmed by the practice relating to Article 2 (3). Hence, the word "obligatoire" is merely intended to indicate that the said "avis" must necessarily be sought. The procedure may then appear quite superfluous. This is why we have simply translated "avis obligatoire" with "consultation". 21

Compare, e.g., Article 1 of the Grand Ducal regulation of 10 July 1995 (Mémorial 1995, A-60, p. 1475), which states that "laparticipation de l'armée (...) relève du ministre de la Force publique" (implementation of a prior decision), and Article 1 of the Grand ducal Regulation of 2 May 1997 (Mémorial 1997, A-36, p. 1384), which states that "le Luxembourg participe à la Mission ('.../'(decision inse). 22

Article 36: "The Grand Duke adopts the regulations (...) that are necessary for the implementation of the laws"; Article 37: "The Grand Duke commands the armed forces". The issue had already been noticed by the Commission des fonctionnaires et employés publics (avis du 4 mai 1992, Documents parlementaires, session 1991-1992, No. 3607/01).

526

Frédéric Dopagne

is therefore normal that such a decision be put in a Grand Ducal regulation. If the decision to participate were adopted by the Government in Council alone, acting as such, it would be without foundation from a legal point of view, notwithstanding the Law of 27 July 1992: the Government has indeed no powers of its own and its acts are not, strictly speaking, of a juridical nature.23 24 In this respect, the fact that the political decision should initially be made by the ministers has no importance: of course the Government, and not the Head of State, possesses the substance of the political power, as in every parliamentary regime. What is important here is that the decision take the form provided for by the Constitution as to all acts of the Executive, i.e. a Grand Ducal act with the undersignature of his minister(s).25 It must be added that some recent participations in peace-keeping operations seem to have been based solely on a Governmental decision, without any Grand Ducal formal approval, while the contemplated operations undoubtedly fell within the scope of the Law of 27 July 1992.26 This practice is not formally contrary to the ordinary legislation, but it is hardly reconcilable with the constitutional system.

2. The Participation of Parliament in the Decision to Deploy the Armed Forces Parliament does not really participate in the decision to deploy the armed forces. Except for the - still theoretical - authorisation of a declaration of war according to Article 37 of the Constitution (see above, 1.), the only functions it fulfils are the consultative functions provided for in the Law of 27 July 1992. In this respect, the "competent commissions" referred to in Article 1 (2) of the Law of 1992 are, in the current practice, the Foreign Affairs Commission, and

23

There is no duality of competences within the Executive. Joint possession between the Grand Duke and his Government is underlined by Article 79 of the Constitution, which states: "There is no intermediate authority between the members of the Government and the Grand Duke". 24

Whereas the regimes are quite similar, that is, however, what happens in the current Belgian practice (decision of the Council of Ministers, by consensus and without royal formal approval): see the chapter on Belgium and P. d'Argent, Le Roi commande les forces armées, (1994) 27 Revue belge de droit international, pp. 216 e/ seqq. 25

Article 45 of the Constitution: "The acts of the Grand Duke must be undersigned by a responsible member of the Government"; Article 78: "The members of the Government are accountable (before the Chamber)." 26

See, for instance, the case of the contingents of Luxembourg that have been sent to Kosovo since April 2000 in order to join the mixed Belgium-Luxembourg battalion BELUKOS: to my knowledge no Grand Ducal regulation was adopted.

Military Law in Luxembourg

527

the powers of the former Working Commission, mentioned in Article 2 (3), have been recently transferred to the Conférence des présidents de la ChambreΡ

3. The Functions of the Minister of Defence The Minister of Defence does not play a specific role. The Grand Duke commands the armed forces (see above, 1.), with the consent of the responsible minister(s), notwithstanding the "authority" referred to in the new Article 2 of the Law of 23 July 1952. It should be noted, however, the power of the Minister of Defence to deploy authoritatively and without their consent the members of the regular military personnel for operations abroad (see above, II.2.).

4. The Role of the Military Leadership The military leadership is not given any particular role. It is subordinated to the Grand Duke, who is the Commander of the Armed Forces.

5. Parliamentary Control a. The Parliament's Powers to Control the Armed Forces The Chamber exercises a general political control over the armed forces through the classical democratic process and through its budgetary competences.28 As regards the "balance of powers" between the Legislature and the Executive, several constitutional provisions deserve to be mentioned. -

Article 35: "The Grand Duke makes appointments to the (...) military posts, in accordance with the law, and barring the exceptions laid down by it."

27

Law of 17 June 2000, Article 2 (Mémorial 2000, A-47, p. 1089). The Conference includes the President of the Chamber, the presidents of the political groups, and the presidents of every technical group (Article 26 (2), al. 1 of the Regulations of the Chamber); the presidents of the special or permanent commissions have the right to be heard (ibid., al. 2). 28 The work of two commissions is particularly relevant in this respect: the Commission des comptes and the Commission du contrôle de l'exécution budgétaire. The defence budget is in a process of increasing during the term 1999-2004; in the end it should exceed 1 per cent of the GDP.

528

-

Frédéric Dopagne

Article 37: "[The Grand Duke] declares war and the cessation of war upon the authorisation of the Chamber (...)" (see above). Article 41: "The Grand Duke confers the (...) military orders, subject to what the law prescribes." Article 94: "Particular laws regulate the organisation of the military courts (...)".

In addition, Article 20 (1) of the Law of 23 July 1952, as modified by the Law of 2 August 1997, states that the contingent (i.e. the precise number of the members of the army) of the volunteers, officers (cadres), and soldiers is adopted by a Grand Ducal regulation. 29 In conclusion, the powers of the Executive and of the Legislature are quite well balanced. One must keep in mind the following provisions: Article 33 of the Constitution states that "[the Grand Duke] exercises the executive power in accordance with the Constitution", whereas Article 96 of the Constitution states that "everything that concerns the armed forces is regulated by the law". One may infer from those provisions that, to put it shortly, the Parliament enjoys a kind of residual competence in the field of the armed forces. b. Special Forms of Parliamentary Control over the Military In the Chamber, there exists a Commission des Affaires étrangères et européennes et de la Défense, which does the common parliamentary work. c. Court of Auditors and Comparable Institutions The control of the Court of Auditors (Article 105 of the Constitution) applies in the field of defence, since military spending is of a public character.

IV. The Structure of the Armed Forces Within the Ministry of Foreign Affairs, Foreign Trade, Cooperation, and Defence, 30 a so-called Direction de la Défense has been set up. It is actually a "mini Ministry of Defence", which is separate from the military proper. Its pri29

See the Règlement grand-ducal du 24 mai 1998 portant fixation du contingent des volontaires de l'Armée (Mémorial 1998, A-45, p. 689). The armed forces of Luxembourg currently have about 800 members altogether. For detailed figures, see the Rapport d'activité 2000 of the armed forces. 30

Grand Ducal Decree of 11 August 1999, organising the organisational structure of the Ministries (Mémorial 1999, A-113, p. 2050).

Military Law in Luxembourg

529

mary task is to assist the Minister of Defence in the planning and implementing of a defence policy which serves to carry out the missions of management and control of the military.31 It is also in charge of recruiting young volunteers. In practice, it constitutes the primary link between armed forces and the Minister of Defence.

V. Soldiers' Rights and Duties 1. Restrictions of Fundamental Rights of Soldiers a.

General

Aspects

Article 3 (2) of the Law of 16 July 1979 on Discipline in the Public Forces,32 states that military personnel33 enjoy the same constitutional rights as any citizen (equal treatment, freedom of association, etc.), without prejudice to their legally defined military duties. The exercise of some of those rights is nevertheless regulated by the same law. b. Political

Neutrality

of

Soldiers

Article 11 of the Law of 16 April 1979, addresses the question of political activities. Military personnel must refrain during duty hours from any demonstration in favour or disfavour of a particular political trend. Any action of propaganda in favour or disfavour of a political party or group is forbidden within the service premises, even outside of duty hours. The servicemember is not entitled to wear his uniform to political demonstrations. Superiors may not influence the political opinion of their subordinates. This said, servicemembers may freely express their opinions among friends.

31

Ministère des Affaires étrangères, du Commerce extérieur, de la Coopération, de l'Action humanitaire et de la Défense, Rapport d'activité 1999, p. 112. 32

Loi du 16 avril 1979 ayant pour objet la discipline dans la Force Publique, Mémorial 1979, A-33,p. 662.

33

According to Article 90, al. 2 of the Law of 31 May 1999 (Mémorial 1999, A-87, p. 1802), creating the police grand-ducale, the term "militaire" used by the Law of 16 April 1979, must be replaced by the terms "militaire de l'Armée et le personnel policier du corps de la Police et de l'Inspection générale de la Police". However, our subjectmatter is not concerned by that modification. Hereafter, for greater convenience, I will continue to employ only the term "military".

530

Frédéric Dopagne

c. Other Fundamental Rights and their Restrictions Article 13 deals with the right to work. Servicemembers may not exercise either commercial, artisanal, or industrial activities, or be self-employed, while serving, and any paid activity of secondary importance in the private sector must be authorised by the Government in Council (paragraph 2). Activity within trade unions, however, is not considered to be such an activity, even when remunerated (paragraph 3), and hence it is not forbidden. Holding interests in a corporation might be subjected to limitations in case the independence of the soldier is at stake.34 It is forbidden within the armed forces to go on strike (Article 1 (2) of the Law of 16 April 1979 which regulates the strike within the services of the state and the public institutions that are under the direct control of the state).35 This prohibition applies to regular military personnel as well as to volunteers. No provision relates to the freedom of residence. In conclusion, one can say that the restrictions that may affect the soldiers' rights are not very far-reaching.36 d. Conscientious Objection The problem of conscientious objection does not arise since the armed forces are based on a system of voluntary service.

2. Legal Obligations of Soldiers Obligations conveying restrictions on rights will not be mentioned here since they have already been addressed (see above, 1.). 34

Article 13, al. 1 : "Il est interdit au militaire d'avoir par lui-même ou par personne interposée, sous quelque dénomination que ce soit, dans une entreprise soumise au contrôle de son service, ou en relation avec son service, des intérêts de nature à compromettre son indépendance". 35 Loi du 16 avril 1979 portant réglementation de la grève dans les services de l'État et les établissements publics placés sous le contrôle direct de l'État, Mémorial 1979, A-31, p. 642. 36

Formerly, officers had to obtain authorisation if they wished to marry (Arrêté royal grand-ducal du 7 décembre 1841). That constraint has recently been abolished (Règlement grand-ducal du 17 août 1997, Mémorial 1997, A-72, p. 2320), but the soldier is nevertheless still under the duty to notify the Minister of Defence, of any professional activity carried out by his (her) spouse. If the activity is not compatible with the military's function, he (she) may incur sanctions (see Article 13, al. 5 - 6 of the Law of 16 April 1979).

Military Law in Luxembourg

531

Generally speaking, the servicemember has the duty to serve his homeland faithfully, and to respect and bravely defend the liberty of the nation and the institutions of the State of Luxembourg (Article 3 (3) of the Law of 16 April 1979). He must do his best to remain healthy or to recover from illness or injury (ibid., paragraph 4).37 He shall observe the rules issuing from the duties of loyalty, solidarity, and comradeship. He must respect the rights and opinions of other soldiers, as well as their honour and dignity. He owes them help and assistance if needed (ibid., Article 8). He must take into account the interest of the service and refrain from activities which could compromise the good reputation of the Public Forces. He must show mutual respect for the other members of the armed forces (ibid., Article 9). He must safeguard government secrets and is responsible for the objects and documents he has been given in the service's interest (ibid., Article 10). He must avoid anything that might compromise the official character of the exercise of his functions, give rise to scandal, offend against propriety, or compromise the service's interests (ibid., Article 12). He may not be absent without justification (ibid., Article 15). When taking part in a peace-keeping operation, military personnel are obliged to carry out their mission with devotion and integrity, and to obey the instructions of their superiors according to Articles 28 and 29 LOMP (Article 24 (2) LOMP). Moreover, they must abstain from any intervention in the public affairs of the host country (ibid., paragraph 3).

3. The Power of Command and the Duty to Obey Obedience must be swift, loyal and conscientious. When it is impossible to execute an order, due to unforeseen circumstances, the subordinate must immediately refer to the person who gave the order. When it is impossible to refer to the superior, in case of urgent necessity, he (she) must take the appropriate measures on his (her) own initiative, while being guided by the intentions of the person who gave the order. On the other hand, it is forbidden to obey an order whose execution would constitute a crime or a dereliction: the person carrying out such an order is responsible if he (she) knows (or should have known) that, by doing so, he (she) participates in the perpetration of an offence. The refusal to follow up an order which is incompatible with human dignity or extraneous to the service is not considered as a refusal to obey (Article 7 of the Law of 16 April 1979). When giving orders, the superiors must observe the rules of international law as well as the laws and regulations in force. The order must be given in the 37

See also Article 37 of the Military Penal Code.

532

Frédéric Dopagne

interest of the service and come within the jurisdiction of the person who issues it (ibid., Article 6 (1)). In addition, there are some particular provisions in the field of peacekeeping operations. Any person who takes part in such an operation is indeed required to conform to the disciplinary regulations of the force in which he (she) participates. That person must also obey the orders, directives, and instructions the Commander-in-Chief has given for the operational needs (Article 28 (1) LOMP). One important exception to this rule must be stressed: if the commander of the contingent of the Public Forces considers that an order, a directive, or an instruction coming from the hierarchical authorities of the PKO or from a foreign authority with which a contingent of the armed forces of Luxembourg has been integrated or united under Article 2 (2) LOMP (see above, II.3.) -

is contrary to the fundamental norms of international law, is incompatible with the law of Luxembourg, or is contrary to the interests of the Grand Duchy,

he (she) shall refuse the execution of it, inform the competent hierarchical authorities or the concerned foreign authority, and refer to the Government of Luxembourg. After dialogue with the competent authorities or the state(s) concerned, the Government shall inform the commander of the consequences to be attached to the order in question. The same prescriptions apply when the issue of compatibility is raised by a provision of the disciplinary regulations of the concerned peace-keeping force (Article 29 LOMP). This procedure confirms that the Grand Duke undoubtedly retains the full command of the armed forces, even in integrated structures where the operational command has been delegated to foreign (or international) authorities. Indeed, if the commander of the contingent of Luxembourg may not carry out a foreign (or international) order which he (she) considers as being contrary to the interests of the Grand Duchy, a fortiori he (she) may not execute a foreign (or international) order which contradicts an order coining from the Grand Duke himself.

4. Social Rights of Soldiers and their Families The social rights of military personnel include the rights to chaplain and social services. There is also a right to free medical care for volunteers, provided that the treatment is carried out by the medical service of the army (Article 16 (5) of the Grand Ducal Regulation of 22 September 1967, determining the status of

Military Law in Luxembourg

533

the armed forces' volunteers, as modified by the Grand Ducal Regulation of 12 June 1998).38 Apart from that, one particular category of rights deserves some consideration, even if they are not, strictly speaking, "social" rights. Article 25 of the Law of 23 July 1952, concerning the military organisation, as modified by the Law of 2 August 1997, provides for employment privileges for volunteers who have served in the armed forces for at least three years.39 These volunteers have then either an exclusive right to be admitted to certain jobs (postal service, customs, etc.) or a "droit de priorité" as to certain appointments (municipalities, Luxembourg Rail, etc.). If one had to apply the distinction between the "institutional approach" and the "occupational approach", one might say that the fact that the armed forces have to offer such privileges in order to be attractive tends to prove that Luxembourg has adopted the occupational approach, as in the current Belgian model. Soldiers' families do not enjoy any particular rights. For instance, they do not enjoy the right to free medical care. The armed forces do not have special schools, day nurseries, etc., for the soldiers' children. It does not organise sports or holidays for them. This is actually not very surprising: the volunteers are usually unmarried (most are unmarried when they are recruited, and rarely marry after recruitment). Let us, however, point to Article 21 LOMP, which states that the child of a soldier who has died while taking part in a peace-keeping operation receives the benefit of war orphans regulations until the age of 18 or until the end of his (her) studies.

5. Rules Governing Working Time a. Working Time and Compensation for Overtime Here a distinction must be drawn between "regular" military personnel and volunteers. The regulars work 40 hours a week, whereas the volunteers must be at the disposal of the armed forces 24 hours a day.

38 39

Mémorial 1998, A-49, p. 725.

One exception to this requirement of three years of service has to be mentioned. The volunteer who no longer satisfies the physical conditions required for public posts, due to his (her) participation in a peace-keeping operation, enjoys the droit de priorité even if he (she) has not performed three years of service. It is however possible that the state establishes that the disability is attributable to events that are not related to participation in the peace-keeping operation (Article 17 (2)-(3) LOMP).

534

Frédéric Dopagne

The regular military personnel must constantly work overtime, since the armed forces are severely understaffed. Theoretically, two forms of compensation are possible: compensation strictly speaking (compensation), that is, compensation in kind (days off), and financial compensation (indemnisation). In practice, personnel usually receive financial compensation. If they were given days off to make up, other personnel would have to work overtime in order to do their job which would obviously lead to a vicious cycle. At any rate, the occupational approach seems to prevail in this respect, too. b. Holidays and Special Leave In this respect the regular military personnel, as well as the volunteers, are subjected to the same regulations as the employees of the civil service of Luxembourg.

6. Legal Remedies, in Particular Rights to File a Complaint There is no ombudsperson within the armed forces. The right to file a complaint, which is recognised by Article 57 of the Law of 16 April 1979,40 must be exercised through the common hierarchical channel: the plaintiff addresses the request to his (her) immediate disciplinary superior (to the indirect superior if the direct superior is involved). It must be stressed that it is not necessary that complaints about the behaviour of other soldiers be framed as the superior's failure to protect his subordinates against each other, since complaints are also possible against the actions of peers. Indeed, Article 57 states that any member of the military has the individual right to complain about any act of his superiors or his equals that, according to him, infringes on his statutory rights or is unjustified.

7. Rights of Institutional Representation There exists in each company a volunteers' delegate (délégué des volontaires), who is elected once a year. He (she) is the primary link between subordinates and their superiors.

40

Loi du 16 avril 1979 ayant pour objet la discipline dans la Force Publique, 1979,A-33,p. 662.

Mémorial

Military Law in Luxembourg

535

VI. The Relationship of the Superior to Subordinate Personnel 1. Legal Rules Concerning the Relationship between Superior and Subordinate a. The Position of the Superior "Military discipline requires (...) hierarchical subordination" (Article 2 of the Law of 16 April 1979). Subordination consists in the dependence of the subordinate on the superior to whom he (she) owes respect and obedience (ibid., Article 5 (1)). The position as superior is based: generally on rank, and, when ranks are equal, seniority, normally on the post/position exercised,41 occasionally on the exercise of particular competences (ibid., Article 5 (2)). b. The Duties of the Superior Any military superior must set an example through the way he (she) behaves and fulfils his (her) duties. He (she) is responsible for overseeing the training and day-to-day work, and for the discipline of the subordinates, and he (she) shows them concern, justice, and impartiality. He (she) observes, whether on duty or not, the reserve and the discretion that will ensure the confidence of his (her) subordinates (ibid., Article 3 (5-6)). The superior is responsible for the orders he (she) gives, and for making sure that they are carried out: in this respect he (she) may use the disciplinary means at his (her) disposal (see below, Vll.l.d.); among other things, the soldier can be put under arrest, but may not resort to actual force.42 The possible liability of his (her) subordinates does not discharge him (her) from the responsibilities he (she) bears (ibid., Article 6 (2)).

2. Subordination of Soldiers to the Command of a Superior of Foreign Armed Forces According to Article 1 (2) of the Law of 16 April 1979, military personnel who are abroad remain subjected to that law, even if they are not under national command. It may thus be inferred that the soldiers of Luxembourg may be placed under foreign command. Recent practice has confirmed this beyond any 41

Article 12 of the Law of 23 July 1952, states that rank is distinct from the post/position exercised. 42 See on this Article 14 of the Law of 16 April 1979.

536

Frédéric Dopagne

doubt, 43 and this technique is explicitly contemplated and regulated by the Law of 27 July 1992 (see Π.3.). As already stated, the Grand Duke nevertheless always retains full powers of command. When integrated within an international force, the military personnel are naturally subordinated to the hierarchical superior authorities of that force, even if the superior is a foreigner. For example, when taking part in a peacekeeping operation, the members of the force have to conform to the orders, directives, or instructions of the force's commander with respect to the authorisation of carrying and use of firearms (Article 16 LOMP).44

3. Service Regulations and their Legal Nature On the one hand, there are the "military regulations", and on the other hand, the "permanent orders of the military centre". Their purpose is, inter alia, to specify the soldiers' rights and duties that are defined by the law. They do not by themselves create rights or duties, as any internal regulations.

VII. Sanctions 1. Disciplinary Law a. Disciplinary Power Discipline within the armed forces is regulated by the Law of 16 April 1979.45 In principle, this law applies to any military member of the Public Forces, and to any other person who wears the military uniform (Article 1 (1) of the Law of 43

This situation has indeed arisen in several instances. For example, the contingent which Luxembourg contributed to IFOR operated under the operational command of the Belgian battalion; the contingent contributed to Eurocorps is placed under the operational command of the Belgian 1st Mechanized Division by virtue of the Agreement of 11 December 1996. 44

In early practice, the Grand Ducal regulations authorising the participation of Luxembourg in peace-keeping operations contained an explicit reference to the hierarchical authority of the officer commanding the operations (see e.g. Article 7 of the Grand Ducal Regulation of 10 July 1995, relating to the participation of the armed forces in the operations of a possible withdrawal of the UNPROFOR from the former Yugoslavia, Mémorial 1995, À-60, p. 1475, or Article 6 of the Grand Ducal Regulation of 8 December 1995, concerning the participation of the armed forces of Luxembourg in the peace forces in the former Yugoslavia, Mémorial 1995, A-96, p. 2260). 45

Law on Discipline in the Public Force, Mémorial 1979, A-33, p. 662.

Military Law in Luxembourg

537

16 April 1979). Members of the Public Forces participating in peace-keeping operations remain subjected to that law (Article 26 LOMP), even if not under national command (Article 1 (2) of the Law of 16 April 1979). The law states that any act which is contrary to the duties that are determined by the law, whether performed in the exercise of official functions or not, constitutes a disciplinary offence (Article 18). The law determines who possesses the disciplinary power (Article 25-28) which depends on both the hierarchical position of the offending person and the gravity of the sanction. The concerned superiors are the Company Commander, the Battalion Commander, the Commander of the Army, the Minister of Defence, and the Grand Duke. b. Criminal Law and Disciplinary Law A member of the regular military personnel against whom judicial or administrative proceedings have been brought may be suspended from office during the judicial procedure until the final decision is reached (Article 20 (1) of the Law of 16 April 1979). As for the volunteers, it is up to the Minister of Defence to order such suspension (Article 21 (1) of the Law of 23 July 1952). A member of the military personnel is ipso jure suspended from office when he (she): is detained as a result of a judicial conviction which is no longer likely to be appealed (condamnation judiciaire passée en force de chose jugée), until the end of the period of detention (Article 20 (2), a of the Law of 16 April 1979 and Article 21 (2) of the Law of 23 July 1952); has been convicted by a judicial decision which is still likely to be appealed ( décision judiciaire non encore passée en force de chose jugée) and which involves the loss of post or position, until the final decision is reached (Article 20 (2b) of the Law of 16 April 1979); is remanded in custody, until the end of the period of detention (ibid., c. see also paragraph 6). Judicial decisions ruled by criminal courts are not an impediment to the application of disciplinary sanctions. However, when proceedings are brought before a criminal court, the disciplinary council may suggest that the disciplinary procedure be suspended until the final decision of the criminal court has been reached (Article 22 (3)-(4) of the Law of 16 April 1979). c. The Purpose of Disciplinary Law The purpose of disciplinary measures is to secure discipline and, hence, efficiency within the army.

538

Frédéric Dopagne

d. Disciplinary Measures A great variety of disciplinary measures are available, from the simple warning to expulsion from the armed forces (see Article 19 of the Law of 16 April 1979, which draws a distinction between sanctions against regular military personnel and sanctions against volunteers). The application of sanctions is regulated according to the gravity of the offence, and the rank, the nature of the post/position, and the previous history of the accused soldier. Moreover, these measures may not be applied consecutively with respect to a single disciplinary procedure (Article 22 (1-2) of the Law of 16 April 1979).

e. Disciplinary Law and the European Convention on Human Rights None of the disciplinary measures contemplated by the law would seem to raise problems as regards the European Convention on Human Rights.

f . The Disciplinary Procedure and Legal Remedies Disciplinary investigation is conducted by the competent hierarchical commander of the accused, and by the disciplinary council. The hierarchical commander notifies the soldier concerned of the charges laid against him (her). The latter then has 10 days to submit his (her) position. The file is transmitted to the chef de corps with the conclusions of the hierarchical superior. The chef de corps -

-

-

closes the matter if the investigation shows that the soldier has not breached his (her) duties, or when he (she) considers that the application of a sanction would not be advisable; applies the sanction when the facts established by the investigation constitute a breach to be sanctioned by warning, reprimand, arrests, or fine not exceeding the fifth of a gross monthly salary or the average indemnity; transmits the file to the disciplinary council when the facts constitute a breach to be sanctioned by a more severe measure than those mentioned above.

The disciplinary council is made up of one magistrate of the judiciary order, who is the presiding member, one superior agent of the governmental administration, one officer of the armed forces, one member of the superior ranks of the Police corps, and one member of the superior ranks of the Police General Inspection. A right of appeal exists against disciplinary decisions. The appeal must be lodged within 3 weekdays of the notification. It suspends the execution of the

Military Law in Luxembourg

539

measure. The appeal authority is the authority holding disciplinary power over the superior who took the first instance decision (see Article 29-45 of the Law of 16 April 1979). g. Representation of the Armed Forces during Disciplinary Proceedings No special office which represents the armed forces during the proceedings exists. h. Measures of Commendation Article 17 of the Law of 16 April 1979, lists the rewards that can be given for acts of bravery or devotion, for zeal and a disciplined spirit, or for the way the soldier serves (honorific decorations, congratulations, special leaves, etc.). The same provision also determines the authority that holds the power to give those rewards.

2. Military Criminal Law a. General Issues There is a special military criminal law which is contained in the Military Penal Code.46 The Code enumerates special offences that can be committed only by soldiers (treason, disobedience, voluntary mutilation, desertion, etc.) and attaches sanctions to those offences. The Code applies to members of the Public Forces as well as to all persons that the law classes as military personnel (Article 1), even if the offending person is younger than 18 years old (Article 71 of the Military Penal Code and Article 19 (2) of the Law of 23 July 1952). It applies to the regular military personnel for the duration of their active service and applies to volunteers for the duration of their enlistment (Article 2 of the Military Penal Code). It also applies to war prisoners and foreign military internees (Article 4). It is irrelevant if the punishable offence is perpetrated abroad (e.g. during participation in a peace-keeping operation, Article 5 of the Military Penal Code and Article 22 LOMP). Furthermore, any person who commits an infraction under the law of Luxembourg while taking part in a peace-keeping operation may be prosecuted and judged in the Grand Duchy (Article 23 LOMP). In 46

Loi du 31 décembre 1982 concernant la refonte du code pénal militaire, Mémorial 1982, A-144, p. 2600.

540

Frédéric Dopagne

this respect, neither the requirement of "double incrimination" as to derelictions, nor the requirement that the foreign state concerned have officially apprised the Grand Duchy of the dereliction (Article 5 of the Criminal Procedure Code) are applicable. b. Relation to General Criminal Law A person to whom the Military Penal Code is applicable remains subjected to the ordinary penal law with respect to the offences for which the said code makes no provision (Article 7 of the Military Penal Code). The provisions of Book I of the General Penal Code are applicable to military infractions, if not derogated from (Article 69 of the Military Penal Code. See also Article 70). c. Military Criminal Courts The Military Procedure Code 4 7 creates special military criminal courts: in general at first instance, the War Council (conseil de guerre),48 in principle on appeal, the Military Appeal Court (cour d'appel militaire),49 and for certain categories of offences, 50 the Military High Court (haute cour militaire). d. Relationship between Civilian and Military Courts The ordinary criminal courts have jurisdiction regarding infractions not provided for in the Military Penal Code that are perpetrated by the persons submitted to the Military Procedure Code (Article 7 in fine of the Military Procedure Code). When a person subjected to the military criminal courts is prosecuted for both a crime or a dereliction coming under the jurisdiction of the military tribunals and for another crime or another dereliction coming under the jurisdiction of the ordinary tribunals, the case is first brought before the court

47

Loi du 31 décembre 1982 concernant la refonte du code de procédure militaire, Mémo-

rial mi, A-114, p. 2610. 48

The Military Procedure Code distinguishes between the (ordinary) War Council and

the War Councils at Large (conseils de guerre en campagne) (see Article 49 et seqq.). 49 High ranking officers (above the rank of captain) are subject to only one degree of jurisdiction: they are judged directly by the Military Appeal Court (Article 7 (3), (1) of the Military Penal Code). 50 For example, breaches of the Geneva Conventions (Article 11 of the Military Procedure Code).

Military Law in Luxembourg

541

which is competent for the crime or dereliction that involves the harshest sanction, and then, eventually, before the other court. If the two offences involve the same sanction, or if one of them is desertion, the accused is first judged for the crime or dereliction falling within the jurisdiction of the military courts (Article 8 of the Military Procedure Code). When proceedings are brought against a person subjected to the Military Penal Code for a crime or a dereliction coming under the jurisdiction of the military courts, if there are accomplices who are not subjected to those courts, all the accused are indiscriminately prosecuted before the ordinary tribunals (ibid., Article 9). e. Special Rules with Respect to Legal Procedure and the Sanctions System The procedural rules are provided for by the Military Procedure Code (see Article 13-48, 57-66 and 72-75). /

Military Prosecutors

The military prosecutors attached to the War Council are called the "auditeurs militaires". They are chosen among the magistrates of the judiciary order and appointed by the Grand Duke. They are subjected to the authority of the "procureur général d'État", who exercises the functions of the Ministère public on appeal. At first instance, the auditeurs militaires exercise the functions of the examining judge (juge d'instruction) as well. They are also in charge of the investigation before the Military High Court, where the prosecutor is the procureur général d'État (Article 3-4 of the Military Procedure Code). All these persons are thus not part of the military hierarchy, but of the Ministère public. g. Justification by Superior Orders The provisions of Book I of the General Penal Code are applicable to military infractions, if not derogated from (Article 69 of the Military Penal Code. See above, b.). Among those provisions, Article 70 holds that there is no offence when the crime or dereliction was ordered by the law and commanded by the legitimate authority. This objective cause of justification applies to superiors' orders within the armed forces. h. Sanctions for Non-Compliance with International Humanitarian Law In Luxembourg, no law comparable to the Belgian Law of 16 June 1993, was enacted (see the chapter on Belgium in this respect). Nevertheless, within the

542

Frédéric Dopagne

framework of the Prosecution of breaches of international humanitarian law committed in the former Yugoslavia and in Rwanda, the judges have been given a "universal jurisdiction". Indeed the Law of 18 May 1999, on cooperation with the ICTY and the ICTR, 51 states that a person who has perpetrated crimes or derelictions defined by the law of Luxembourg which constitute, in the sense of the Statutes of the international criminal tribunals, grave breaches of the Geneva Conventions or Additional Protocol II, violations of the laws and customs of war, genocide, or crimes against humanity, may be prosecuted and judged by the authorities of Luxembourg if found on the territory of the Grand Duchy (Article 1-2 of the Law of 18 May 1999). Theoretically, that law might concern the soldiers of Luxembourg who are deployed (or formerly operated) in the former Yugoslavia. However, it should not be necessary to resort to this law in such an event, since Article 23 LOMP, establishes the jurisdiction of the courts of Luxembourg, at any rate, in cases of offences perpetrated during a peace-keeping operation (see above, a.). 52 i. Ratification of the Rome Statute of the International Criminal Court Luxembourg signed the Statute on 13 October 1998. The parliamentary assentiment was voted on 14 August 2000. 53 The Grand Duchy ratified the Statute on 8 September 2000, without any declaration or reservation.54 51

Mémorial 1999, A-66, p. 1436. Even if it is not international humanitarian law, recent developments concerning torture deserve to be briefly mentioned. The new Article 7-4 of the Criminal Procedure Code, introduced by the Law of 24 April 2000, containing adaptations of domestic law to the provisions of the UN Convention against Torture (Mémorial 2000, A-41, p. 952), gives the courts of Luxembourg universal jurisdiction as regards the acts referred to in Articles 260-1 to 260-4 of the Penal Code. This seems to be a reaction of the Parliament to the ordonnance of a juge d'instruction in the Pinochet case (ordonnance du 16 décembre 1998 du juge d'instruction auprès du tribunal d'arrondissement de Luxembourg, dans l'afTaire de la Plainte contre Augusto Pinochet, No. cab. 1630/98, reproduced in G. Friden and P. Kinsch, La pratique luxembourgeoise en matière de droit international public (1998), (1999) 9 Annales du droit luxembourgeois, p. 402. See also: réquisitoire du 19 novembre 1998 du Procureur d'État, No. 18077/98/CD, ibid., p. 394): the judge, contrary to the Procureur d'État, held that he had no universal jurisdiction as to acts of torture since there was no provision in the law carrying out the obligations arising from (non-self-executing) Article 5 of the UN Convention. The ordonnance has been confirmed by the Chambre du conseil de la Cour d'appel on 11 February 1999 (judgement No. 44/99, reproduced in G. Friden and P. Kinsch, La pratique luxembourgeoise en matière de droit international public (1999), (2000) 10 Annales du droit luxembourgeois, pp. 368 et seqq.). 52

53

Loi du 14 août 2000 portant approbation du Statut de Rome de la Cour pénale internationale, fait à Rome, le 17 juillet 1998, Mémorial 2000, A-84, p. 1968. The adoption of

Military Law in Luxembourg

543

VIII. Regulations Governing Guard Duties Guards may carry arms and use them in accordance with the relevant military regulations (for example, the warning sentence before firing is not the same when the guard is outside the barracks as when he (she) is inside). They have limited competences towards persons who want to enter the base (checking of their bags, etc.). The fact that soldiers of Luxembourg may stand guard in front of a military base abroad raises questions of international law and constitutional law of the host state. Inversely, the possibility that foreign soldiers may stand guard outside a base on the territory of Luxembourg seems to be quite theoretical. In this case, it would be questionable whether they could exercise public force towards the general public, given that their authority would be derived neither from the Constitution nor the implementing laws and regulations of Luxembourg. 55

IX. Legal Reforms with respect to Multinational Operations and Structures 1. Pertinent Legislation The main piece of legislation which has been enacted in this regard is the Law of 27 July 1992, on the participation of the Grand Duchy of Luxembourg in peace-keeping operations within the framework of international organisations (loi relative à la participation du Grand-Duché de Luxembourg à des opérations pour le maintien de la paix (OMP) dans le cadre d'organisations internationales).56 This law is intended to provide a legal, social and financial status for the military personnel taking part in peace-keeping operations abroad. 57 It is important because it constitutes (or should have constituted) the legal basis

that law was possible once the Chamber had modified the Constitution (loi du 8 août 2000 portant révision de l'article 118 de la Constitution, Mémorial 2000, A-83, p. 1965). 54

See generally G. Wivenes, "Le Statut de la Cour pénale internationale: la consécration de la responsabilité pénale internationale des individus et les implications pour le droit

luxembourgeois", (2000) 10 Annales du droit luxembourgeois, pp. 192 et seqq. 55

Article 49 bis of the Constitution provides for the possible transfer of competences to international law institutions, not to foreign states. 56 57

Mémorial 1992, A-56, p. 1744.

The Legislature meant to draw lessons, in that regard, from the past experiences of armed forces in the Korean War, in Iraq (Provide Comfort 1991), and in Baranja (UNPROFOR 1992).

544

Frédéric Dopagne

of many missions undertaken by the armed forces of Luxembourg during recent years. The two elements of its title deserve some explanation. First, the "peace-keeping operations" referred to in the law are those missions of a civil or military character, the purpose of which is, among others, the prevention, the limitation, the reduction, or the cessation of hostilities, whether internal or international, by the intervention of a third party with the consent of the parties directly concerned (Article 1 (3) LOMP).58 Second, the "participation" of Luxembourg may have different forms. It may be: -

financial contributions or contributions in kind, logistic contributions, the sending of civilian contingents, the sending of contingents of the so-called Public Forces (ibid., Article 2 (1))·

2. Probability of Future Reforms No legislation regarding, specifically, the participation of Luxembourg in multinational military units or operations will be enacted in the near future. This said, it is interesting to note that there has been a debate in the Grand Duchy for some years now about the recruiting of foreign volunteers who are EU nationals. The project has not yet taken the form of a draft law to be discussed by the Parliament. Hence, it is difficult to comment on it. It seems however that the candidate will be required to have lived in Luxembourg for at least 12 consecutive months, that he (she) will have to satisfy physical and mental conditions, to take up language courses, etc. It should not be necessary to add that such a measure, if it were adopted, would be quite remarkable. A similar debate has existed in Belgium, due to the difficulty of attracting a sufficient number of volunteers, after the end of conscription.

58 The Conseil d'État, giving an advisory opinion on a draft Grand Ducal regulation relating to the participation of the armed forces in the operations of a possible withdrawal of the UNPROFOR from the former Yugoslavia, ruled that the contemplated mission could not fall within the scope of the Law of 27 July 1992. Nevertheless, it did not provide any further motivation (avis du 16 mai 1995, Documents parlementaires, session 1994-1995, No. 4036-1). Participation was finally decided on the basis of both the Law of 27 July 1992, and that of 23 July 1952 - regarding this law, see above (Règlement grand-ducal du 10 juillet 1995 concernant la participation de l'Armée luxembourgeoise aux opérations d'un retrait éventuel de la FORPRONU de l'ex-Yougoslavie, Mémorial 1995, A-60, p. 1475).

Military Law in Luxembourg

545

3. Academic discussion The issue of participation in peace-keeping operations has raised discussions in recent years, but above all in political circles.

X. Select Bibliography 1. Pertinent Legislation •

Constitution of the Grand Duchy of Luxembourg

•

Loi du 16 avril 1979 ayant pour objet la discipline dans la Force Publique (Mémorial 1979, A-33, p. 662)

•

Loi du 31 décembre 1982 concernant la refonte du code pénal militaire (Mémorial 1982, A-144, p. 2600)

•

Loi du 31 décembre 1982 concernant la refonte du code de procédure militaire (.Mémorial 1982, A-l 14, p. 2610)

•

Loi du 27 juillet 1992 relative à la participation du Grand-Duché de Luxembourg à des opérations pour le maintien de la paix (OMP) dans le cadre d'organisations internationales (Mémorial 1992, A-56, p. 1744)

•

Loi du 2 août 1997 portant réorganisation de l'armée et modification de la loi du 27 juillet 1992 relative à la participation du Grand-Duché de Luxembourg à des opérations pour le maintien de la paix (OMP) dans le cadre d'organisations internationales (Mémorial 1997, A-59, p. 1728)

2. Articles Friden, G. and Kinsch, P., "La pratique luxembourgeoise en matière de droit international public (1998)", (1999) 9 Annales du droit luxembourgeois, pp. 357-411. Friden, G. and Kinsch, P., "La pratique luxembourgeoise en matière de droit international public (1999)", (2000) 10 Annales du droit luxembourgeois, pp. 311-371. Wivenes, G., "Le Statut de la Cour pénale internationale: la consécration de la responsabilité pénale internationale des individus et les implications pour le droit luxembourgeois", (2000) 10 Annales du droit luxembourgeois, pp. 153-214.

Chapter 9 Military Law in the Netherlands Dr. Leonard F. M . Besselink 1

Table of Contents I. The Historical and Political Background of the Military Law System of the Netherlands 1. The Armed Forces'General Perspective a. The Constitutional Perspective b. The Perspective of Parliamentary Democracy c. The Armed Forces in the Eyes of the Public II. Basic Rules Concerning the Use of Armed Forces 1. The Mission of the Armed Forces 2. Permissible Operations a. Civilian Tasks for the Military b. States of Emergency at Home c. Other Operations 3. Operations Undertaken Jointly with the Armed Forces of Another Country 4. Constitutional Powers a. The Position of the Head of State b. The Powers of the Government c. The Participation of Parliament in the Decision to Deploy the Armed Forces d. The Functions of the Minister of Defence e. The Role of the Military Leadership 5. Parliamentary Control a. The Parliament's Powers to Control the Armed Forces b. The Treaty Power c. Other Forms of Control III. The Structure of the Armed Forces 1. The Armed Forces and their Administration 2. Procurement of Material and Supplies for the Armed Forces IV. Soldiers'Rights and Duties 1. Restrictions of Fundamental Rights of Soldiers a. General Aspects b. Political Neutrality of Soldiers c. Freedom of Association and Political Rights 1

Professor of Law, Instituut voor Staats- en bestuursrecht, Universiteit Utrecht.

549 551 551 554 556 558 558 559 560 560 561 562 563 563 564 566 569 570 573 573 574 576 578 578 579 580 580 580 585 586

Leonard F. M. Besselink

548 d. e. f. g.

Freedom of Expression Freedom of Demonstration and Assembly Freedom of Religion Privacy and Physical Integrity (Search, Privacy, Hairstyle, Beards, Ornaments, and Piercings) h. Freedom of Movement, the Right to Leave the Country i. Equal Treatment and Non-Discrimination; Women; Homosexuals . . j. Right to Strike k. Child Soldiers 2. Legal Obligations of Soldiers 3. The Power of Command and the Duty to Obey 4. Social Rights of Soldiers and their Families 5. Rules Governing Working Time a. Working Time and Compensation for Overtime b. Holidays and Special Leave 6. Legal Remedies, in Particular Rights to File a Complaint a. General Right to File a Complaint b. Complaint to Ombudsperson Institutions c. Right to Petition d. Complaint about the Behaviour of Fellow Soldiers 7. Rights of Institutional Representation V. The Relationship of the Superior to Subordinate Personnel 1. Legal Rules Concerning the Relationship Between Superior and Subordinate 2. Subordination of Soldiers to the Command of a Superior of Foreign Armed Forces 3. Service Regulations and their Legal Nature VI. Sanctions 1. Disciplinary Law a. Disciplinary Power b. Relation to Criminal Law c. The Purpose of Disciplinary Law d. Disciplinary Measures e. Disciplinary Law and the European Convention on Human Rights . . f. The Disciplinary Procedure and Legal Remedies g. Representation of the Armed Forces during Disciplinary Proceedings h. Measures of Commendation 2. Military Criminal Law a. General Issues b. Relation to General Criminal Law c. Military Criminal Courts d. Special Rules with Respect to Legal Procedure and the Sanctions System e. The Military Prosecutor f. Justification by Superior Orders g. Sanctions for Non-Compliance with International Humanitarian Law h. Ratification of the Rome Statute of the International Criminal Court VII. Regulations Governing Guard Duties 1. Powers of Guards Towards Military Personnel as well as Towards Civilians

588 591 593 596 599 600 603 604 605 606 609 611 611 612 614 614 616 617 617 617 619 619 619 623 624 624 624 624 625 625 626 626 628 628 629 629 630 630 631 632 632 634 636 636 636

Military Law in the Netherlands 2. The Rules Concerning the Carrying and the Use of Arms and other Military Equipment 3. Performance of Guard Duties by Soldiers of Foreign Armed Forces . . . VIII. Legal Reforms with Respect to Multinational Operations and Structures . . 1. Pertinent Legislation 2. Probability of Future Reforms 3. Academic Discussion IX. Select Bibliography 1. Pertinent Legislation 2. Books and Articles

549

637 639 640 640 643 643 644 644 644

I. The Historical and Political Background of the Military Law System of the Netherlands The position of the armed forces in the constitutional and legal systems is to a considerable extent determined by developments in political history involving the military.2 Thus, it is of some significance that the military has never played an important role in the government of the country as a whole, except that in the period of the Dutch Republic (1581-1793), the stadtholder (the formal Head of State, who in fact was never considered to be sovereign) had a significant role as commander of the armed forces. Foreign policy in the 19 th century was shaped by the fact that the Netherlands was a major colonial power with a great stake in international trade. Dutch foreign policy was mainly formed by a strong commitment to neutrality and independence. This policy of neutrality was maintained throughout the First World War. Although the Kingdom was a member of the League of Nations, it did not officially rescind neutrality until the Second World War. The events surrounding the Second World War are important for an understanding of the prominent role of international military cooperation and the present active involvement of the Dutch armed forces in multinational military operations and units. The country was swiftly occupied in the first days of May 1940 by the German armed forces. However, the Government, which fled to England, retained a small brigade there during the World War, consisting of expatriots, refugees, and some military personnel who had managed to cross the North Sea. This brigade, the Prinses Irene Brigade, was placed under British command by Royal Decree. The southern part of the Netherlands was liberated in September 1944 mainly by British, Canadian, and some American troops.

2 Preliminary remark concerning terminology. The Dutch term "militair", which is crucial in the entire legislation, has been rendered with the English word "soldier". The word "soldier" or "soldiers" does therefore not indicate any rank or order.

550

Leonard F. M. Besselink

After a cold winter marked by hunger (with 16,000 casualties as a consequence), the northern part of the country was liberated by foreign troops (mainly Canadian and British as well as some Polish, French, and Belgian armed forces) in May 1945. In the East Indies, however, after the defeat of Japan, the Netherlands fought what was in effect a colonial war in the form of two politionele acties (in July 1947-January 1948 and December 1948-January 1949) against insurgents claiming independence. This enterprise was not, perhaps, entirely dominated by the ambitions of the military, but was rather part and parcel of a colonial policy, similar to that pursued by other colonial powers. The dramatic impact of these operations has been equalled only by that of the Srebrenica tragedy in 1995. After the Second World War, foreign policy was dominated by a firm Atlantic orientation in foreign and security affairs. This has been reinforced since the final independence of Indonesia in 1949, which the US had strongly favoured. The Dutch armed forces have participated in most post-war international operations, from Korea, various operations in the Middle East, the Gulf, Cambodia, Angola, Namibia, Haiti, and Ethiopia/Eritrea, to the Balkans and Afghanistan. At present there is an involvement in observer missions in the Middle East,3 Cyprus 4 and Moldova,5 and military presence in Macedonia, Bosnia, Kosovo, and Afghanistan. 6 The armed forces are cooperating in a fairly large number of multinational military arrangements and units, mostly in the framework of NATO and bilateral arrangements.7

3

U N T S O (United Nations Truce Supervision).

4

U N F I C Y P (United Nations Forces in Cyprus).

5

One observer in OSCE context.

6

Macedonia, Operation Essential Harvest (NATO); Former Yugoslavia/ Dayton Peace Agreement/Stabilisation Force (SFOR); United Nations International Police Task Force (UNIPTF); European Community/ European Union Monitor in Former Yugoslavia (ECMM/ EUMM); United Nations Mine Action Centre/ Bosnia-Herzegovina Mine Action Centre (UNMAC/ BHMAC); Enduring Freedom and ISAF in Afghanistan. 7 It is difficult for the outsider to acquire a complete and up to date overview. The situation is exacerbated by the fact that the legal basis is usually informal. The following I have been able to trace: All service branches participate in the United Nations Standby Arrangement System (UNSAS) and the NATO Command Structure (approx. 850 persons). The navy (Koninklijke marine) in Admiraal Benelux (the cooperation includes an integrated operational staff, a NL/B squadron, and close cooperation in the field of education and training), Standing Naval Force Atlantic, Standing Naval Force Mediterranean, Standing Naval Force Channel, Strike Fleet Atlantic, U K / N L Amphibious Force, U K / N L Landing Force (these last mentioned forces are part of the Strike Fleet

Military Law in the Netherlands

551

1. The Armed Forces' General Perspective a. The Constitutional Perspective The constitutional provisions regarding the armed forces date back to the first Constitution of the Kingdom of 1815 (and its predecessor, the Constitution of 1814, when the Netherlands were formally not yet a kingdom but a principality). The army's character used to be that of a conscript body led by a volunteer cadre of professional officers. The draft - historically considered a foreign element introduced by the French at the turn of the 18 th to 19th century - has always been unpopular. 8 Major attention in terms of constitutional and legislative drafting was focussed on the limitations within which the draft should be kept. There is no strong ideological, democratic or republican concept backing up the idea of a conscript army. The (factual) abolition of the draft in 1995/ 1997 did not meet with any strong opposition, and on the whole was met with relief. The Constitution was amended on the issue of the composition of the armed forces as follows: Article 98 [Amended as of 22 June 2000] 1. The armed forces shall consist of volunteers, and may also include conscripts. 2. Compulsory service in the armed forces and the power to defer the draft to active service shall be regulated by an Act of Parliament. [Previously: Article 98 1. To protect the State's interests, there shall be armed forces, which shall consist of volunteers, and which may also include conscripts. [...]

Force, UK/NL Landing Force (these last mentioned forces are part of the Strike Fleet Atlantic), ACE Mobile Forces Land, Combined Amphibious Force Mediterranean, Shirbrig. The Army (Koninklijke landmacht) in 1 (German/Netherlands) Corps, Multinational Division Central (MND(C)), ACE Rapid Reaction Corps (ARRC), Shirbrig. The Air Force (Koninklijke luchtmacht) in Deployable Air Task Force (a cooperation agreement between BENELUX countries), European Air Group, NATO Integrated Air Defence System (NATINADS). 8

Surveys show that in 1989 some 49% of the population supported the draft, while by 1992 this had dwindled to some 30%, Maatschappij en Krijgsmacht, October 1992, pp. 17-20.

552

Leonard F. M. Besselink

3. Compulsory service in the armed forces and the power to defer the draft to active service shall be regulated by Act of Parliament. The obligations which may be imposed on persons not belonging to the armed forces in relation to the defence of the country shall also be regulated by Act of Parliament.] In order to be precise, we must therefore say that conscription has not been abolished, but rather the calling into active service of conscripts has been suspended. In the meantime volunteers do the job. The Constitution does not articulate any specifically ideological view of the role of the armed forces. The task of the armed forces is formulated as follows: Article 97 [Amended as of 22 June 2000] 1. For the purpose of the defence and the protection of the interests of the Kingdom, as well as for the maintenance and promotion of the international rule of law, there shall be armed forces. 2. The Government shall have supreme authority over the armed forces. [Previously: Article 98 1. To protect the State's interests, there shall be armed forces, which shall consist of volunteers, and which may also include conscripts. 2. The Government shall have supreme authority over the armed forces.] Previously, the independence of the State and the defence of the territory were mentioned in a general provision on the duty of all Dutch nationals, which preceded the provision on the task of the armed forces; the Constitution provided that this duty could also be extended to resident foreigners. This provision has been rescinded and been replaced by a provision, which comes after the provisions on the nature of the armed forces as basically one of volunteers: Article 99 a [Amended as of 22 June 2000] The obligations which may be imposed for the civilian defence of the country shall be regulated by Act of Parliament. [Previously: Article 97 1. All Dutch nationals who are capable of doing so shall have a duty to cooperate in maintaining the independence of the State and defending its territory. 2. This duty may also be imposed on residents of the Netherlands who are not Dutch nationals.] Thus, even the slightest traces which could lend themselves to a patriotic interpretation, have been removed from the Constitution. Nor does the Dutch Constitution provide a democratic ideological basis for

Military Law in the Netherlands

553

the armed forces. The provision, common to continental European constitutions, that all power emanates from the people is absent in the Constitution of the Netherlands. In fact, there is no mention of sovereignty and democracy at all in the Constitution. 9 One of the most prominent 19th century Dutch constitutional lawyers noted that the elaborateness of the constitutional provisions on the armed forces was surpassed only by the German Constitution, but for the opposite reason: whereas the German Constitution wished to restrain Parliament from weakening the armed forces, the Dutch wished to restrain Parliament from making it too strong: "While there [in Germany], the main concern was the desire to protect the powerful army organisation, to which the Empire owed its existence and its greatness, against the not unnatural disposition of the Legislature to cut back on it, with us [in the Netherlands] it was the contrary fear that the Legislature would place overly high ambitions on the armed forces. There the Constitution exudes a strong military spirit; here a no less forceful anti-militarism. In the interest of personal liberty, and to place a limit on the sacrifices which could be imposed on the people for the purpose of the country's defence, the framers of the Constitution were led to a measure of elaborateness which they have been able to avoid elsewhere in the Constitution." 10 For the purpose of this book, it is important to notice that the Dutch Constitution has a relatively strong international orientation, introduced by amendments in 1952 and 1956. Thus it states in Article 90: The Government shall promote the development of the international rule of law [Dutch: internationale rechtsorde; literally: 'international legal order']. The phrase "maintenance and promotion of the international rule of law", recurs in Article 100 of the Constitution, which was introduced in 2000:11 1. The Government shall provide prior information to the States General [the Parliament] concerning the deployment or making available of the armed forces for the maintenance or promotion of the international rule of law. This includes providing information concerning the engagement or making available of the armed forces for humanitarian assistance in cases of armed conflict. 9 For an explanation of this state of affairs, see L. F. M. Besselink, An Open Constitution and European Integration, The Kingdom of the Netherlands, in FIDE, XVII. Kongreß I. (ed.), Nationales Verfassungsrecht mit Blick auf die europäische Integration. Fédération Internationale pour le Droit Européen (Deutsche Wissenschaftliche Gesellschaft für Europarecht) (Berlin, 1996), vol. I, pp. 361 et seqq.- idem, (1996) SEW Tijdschrift voor Europees en economisch recht, pp. 192 et seqq. 10 11

J.T. Buijs, De Grondwet (Arnhem, 1887), vol. II, p. 623 et seq. (author's translation).

Previously, Art. 100 read: "Foreign troops shall not be employed other than pursuant to an Act of Parliament." This was understood to refer to the engagement of foreign nationals as mercenaries or as a foreign legion. The provision has not been retained.

554

Leonard F. M. Besselink

2. The first paragraph shall not apply if peremptory considerations prevent the prior provision of information. In this case, the information shall be provided as soon as possible. This provision had two aims, first to make clear that troops can be sent abroad for the said purpose, and secondly to create some reinforcement of the position of Parliament with regard to sending troops abroad for this kind of operation. b. The Perspective of Parliamentary Democracy The relative unimportance of institutionalising a strong democratic control over the armed forces is reflected in the history of the new Article 100 of the Constitution. Its origin lay in a resolution passed with near unanimity by the Lower House,12 calling for the introduction of a right of parliamentary approval for the decision to deploy troops abroad. The Government was strongly opposed to this, and in the end Parliament acquiesced to the compromise solution imposing the duty on Government to inform Parliament prior to any such action without further powers attributed to Parliament. This, as we shall have occasion to point out, is typical for the constitutional relationships in the Netherlands. All in all, the constitutional position of the armed forces can be termed quasi-monarchical, placing primary power in the Government on which Parliament is not to make too many incursions. The task of caring for defence and the armed forces is considered a primary competence of the Government; only if there is explicit consideration of the role of Parliament in constitutional terms is a further involvement of Parliament considered to be warranted. This is epitomised in the epitaph "the Government is to govern, and parliament is to supervise" ["De regering regeert, hetparlement controleert"]. This, however, is not meant to detract from the principle and practice of ministerial responsibility, which renders any action by the Government accountable to Parliament. As a consequence, the participation in multinational UN peace-keeping actions has been the object of a parliamentary investigation by the Tijdelijke Commissie besluitvorming uitzendingen (Temporary Committee on Decisions to Send Troops Abroad), the so-called Bakker Committee.13 This Committee closely and critically analysed the decision-making in a number of recent cases, and came up with a large number of recommendations for improving the decision-making and parliamentary involvement. 12 Only the Conservative Liberal Party W D voted against, all other parties from left to right voted in favour. 13

Kamerstukken TK, 26454.

Military Law in the Netherlands

555

At the moment of writing, there is also an official parliamentary investigation, a so-called enquête, into the political responsibilities involved in the Srebrenica tragedy. This tragedy was researched in terms of fact-finding by the Nederlands Instituut voor Oorlogsdocumentatie (NIOD) - an institute with a prime focus on the historical study of the Second World War. Its report, which appeared in April 2002, led to the resignation of the cabinet a few days later. The Prime Minister considered that the findings of the NIOD concerning periods in which successive cabinets held responsibility (of which he formed part), could not remain without political consequences. He therefore resigned and was followed by the other ministers (some of whom had also been ministers in previous cabinets), including the relatively new Minister of Defence, who added that the findings on the insufficient provision of information by the military staff to himself were an additional reason to resign.14 Also the Commander-inChief of the army stepped down after much pressure was put on him to do so. Summing up, one may say that the lack of a strong democratic ideology behind the role and functions attributed to the armed forces is to some extent compensated for by the lack of a strong military tradition and history. In saying these things, however, it is important to be aware of the nature and character of the Constitution of the Netherlands. The Constitution (the Grondwet), is only part of that constitution in the larger sense which contains the basic features and rules governing political society. It does not belong to the group of constitutions with a strong exclusive character, based on claims of sovereignty and the autonomy of political society as ordered by that document, the purpose of which is to serve as the normative and legal blueprint of public society, as is the case with the French, Italian and German Constitutions. The Dutch Constitution is only one set of norms within the larger group of norms which comprise "the constitution" in the broader sense of the term. It is a codification which reflects certain rules present in political society rather than an instrument for controlling the political system. In this respect, the Constitution of the Netherlands is much more similar to the Constitution of the United Kingdom, than to the Constitutions of the countries just mentioned. Two examples may illustrate this: First, the new Article 100 was in the end merely intended to codify an already existing practice within the existent constitutional order. Thus it remained entirely within the rules and practices, rather than modifying existing rules and procedures. Although Parliament had originally sought for an instrument to bind Government more than it had been able to under the existent rule, it was, in the end, easily satisfied with a symbolic expression of existing practice rather

14

Kamerstukken, TK 28 334, No. 1.

556

Leonard F. M. Besselink

than introducing a rule which might even slightly alter the perception of traditional roles and institutions. However, this has not prevented Parliament from keeping a fairly close political supervision over defence matters. The second example is the most recent parliamentary discussion on reviewing the decisional criteria to be employed in determining whether to participate in multinational military enterprises, the Toetsingskader uitzending strijdkrachten [Framework for Decision-making for Sending the Armed Forces Abroad], The constitutional lawyer cannot fail to be struck by the mantra, repeated many times by all Members of Parliament who spoke, that the discussion on the interpretation of the constitutional frame of reference, particularly of the newly introduced Article 100 of the Constitution, should not be "legalised". 15 This had as a consequence that it was taken for granted that the reading of Article 100 put forward by the Government - i.e. that Article 100 does not cover actions under Article 5 of the NATO Treaty and similar international instruments - thus places a large number of important multinational operations of the armed forces, outside the reach of the duty of Government to inform Parliament about Dutch participation before this participation occurs. Interestingly, there was also general agreement that it would be unheard of, if ever the cabinet were not to inform Parliament about such participation in multinational operations in advance. c. The Armed Forces in the Eyes of the Public There have been regular public opinion polls on the armed forces since the 1960s, which show a continued support for the existence of the armed forces.16 The question posed is on the necessity of the Dutch armed forces; whether they are necessary, a necessary evil, hardly necessary, or superfluous (and, of course, no opinion). The numbers fluctuate, possibly under the influence of international crises. For instance, in 1963, 93% of the Dutch population deemed armed forces necessary or a necessary evil as compared to only 65 or 66% of the Dutch population in 1989 and 1991 (interspersed with an 80% in 1990). There was also a certain increase in those who found the armed forces hardly necessary or superfluous in the 1980s, which started with the cruise missile debate. There has also been ample support for participation in crisis management and peace-keeping operations as a prime task of the armed forces, ranging 15 16

Kamerstuk 23 591, No. 9.

Statistical information on this and various other opinion polls concerning the armed forces are published on ; the information on this question was derived from this site when consulted in August 2001, which gave a table for 1963-1999, and August 2002, which gave a chart for the years 1989 to November 2001.

Military Law in the Netherlands

557

around 40% of those interviewed in opinion polls, to which some 20% can be added who consider (international) humanitarian assistance by the armed forces to be its most important task (compared to a solid 30 to 35 % who consider the defence of their country the most important task).17 At the same time, the relative importance of the armed forces as compared to other public services ranks relatively low in opinion polls: it ranks after public health, combat of criminality, education, environment, (public) transport, and development aid, according to one study in 1999,18 whereas according to another, policy priority of "the maintenance of peace through the armed forces" has recently become nearly co-equal to (transport) infrastructure, and ranks as a higher policy priority than development aid.19 This relatively low ranking is also reflected in the still relatively strong support for cutting down on military expenditures: More than 30% of those interviewed in recent years say that more than average cuts should be made on the budget for defence (down from 57% in 1989).20 As to the rights and duties of soldiers, public opinion has changed on issues of hairstyle, earrings, other piercings and jewellery, and the general duty to salute superiors, which included the duty to salute outside duty hours, even while off-base and not wearing the uniform. These issues were hotly debated in the 1970's, during which time intensive demonstrations on the part of the soldiers also took place. This resulted in fewer restrictions on soldiers' rights and freedoms, and the abolition of the general duty to salute. Since the abolition of the draft, opinion polls show that a majority of the general public allows greater restrictions of freedom on the relevant issues than was the case with draftees. In 1974, 75% of persons interviewed supported the abolition of the duty to salute, whereas in 1996, 60% agreed that this duty should be reintroduced in a professional army. Also in 1996, 50% of respondents found that long hair should be forbidden to professionals, against 44% who found that hairstyle should be a free choice (another opinion poll around the same time found that 52% agreed to short hair as a rule of conduct against 42% who disagreed); a rule of conduct against "small earrings" was justified in the eyes of 47 % as against 46 % (in another opinion poll on a prohibition of "earrings and other facial jewellery", 63% were against, while 31% supported a prohibition).21

17

Civiel/Militair, Stichting Maatschappij en Krijgsmacht, 1 (1) 2001, p. 17.

18

NIPO, Deferiste op de golven van de publieke opinie, juni 1999; idem, . 19

.

20

.

21

Maatschappij & Krijgsmacht, October 1996, p. 5 et seq.

558

Leonard F. M. Besselink

II. Basic Rules Concerning the Use of Armed Forces 1. The Mission of the Armed Forces The tasks of the armed forces are laid down in Article 97 of the Constitution. The previous Article 97 contained a reference to the duty of every citizen "to cooperate in maintaining the independence of the State and defending its territory." This mention of "independence of the State and defending its territory", together with the duty to defend it, has disappeared from the Constitution. However, in the Charter of the Kingdom, Statuut voor het Koninkrijk, which regulates the relationship between the Netherlands and the overseas countries of the Kingdom (Netherlands Antilles and Aruba) and is of superior rank to the Constitution, the most important matter for the whole realm (ikoninkrijksaangelegenheden) is "the maintenance of independence and the defence of the Kingdom" (Article 3 (1) (a)). This is understood to be the task of the armed forces. The absence of a reference to international tasks, not constituting warfare in the traditional sense, was not considered an obstacle to participation in multinational operations. This has been confirmed in a case decided by the Centrale Raad van Beroep, the court of highest instance in civil servants' affairs, concerning a member of the Koninklijke marechaussee [Royal Military Constabulary] who refused to join U N P R O F O R , and had argued that the carrying out of police tasks in Bosnia cannot be considered as falling within the term "interests of the State" in the former Article 98 of the Constitution (now "interests of the Kingdom" in Art. 97). The State Secretary (staatssecretaris, equivalent of undersecretary) 22 for Defence in this case relied on the view that the various operations abroad have been undertaken by the Government in the "interests of the State", and claimed that Parliament went along with this interpretation. This view was endorsed by the court judging in first instance in the case of the marechaussee,23 and upheld by the Centrale Raad van Beroep in appeal as not being contrary to the content and objectives of the former Article 98.24 In support of this, the Centrale Raad referred to the explanatory memorandum to the bill introducing the Constitutional amendment that led to the insertion of the reference to the "international legal order." Close inspection of this explanatory memorandum indicates

22

See Art. 46 of the Constitution. Arrondissementsrechtbank's-Gravenhage, [District Court The Hague] 2 December 1997, file number AWB 96/6839 MAWKLA, (1998) TAR, p. 38. 24 Centrale Raad van Beroep, 7 September 2000, 98/38 MAw, (2000) TAR, p. 144. 23

Military Law in the Netherlands

559

that it can hardly support the findings of the Centrale Raad. It merely states that "this task of the armed forces [the maintenance and development of the international legal order] is mentioned separately, because it is true that it can be considered a facet of the interests of the Kingdom, it does not merely aim to protect these interests. [...] The proposed indication of the possibilities to deploy the armed forces is in accordance with present-day practice."25 This last sentence reveals the in many ways pragmatic approach taken to the Constitution in the Netherlands: it follows rather than regulates practice. However this may be, the competent Lower House Committee discussed the matter of the constitutional foundation for deployment of the armed forces abroad in the context of a discussion of the earlier version of the so-called "Toetsingskader" already mentioned above. There the Government explained the constitutional grounds for sending troops abroad in terms of the interests of the State in the sense of the then Article 98 (see above), and the general provision on the development of the international legal order as a task for the Government (Article 90, quoted above). This construction was considered unsatisfactory by nearly all the spokesmen for the various political parties, both those supporting the coalition and the opposition. In the debate with the Government, the Minister of Foreign Affairs summed the matter up as follows, according to the protocol of the debate: "Article 98 [previous version, LB] provides, so to speak, the constitutional foothold to deploy the armed forces abroad to serve the interests of the Netherlands. The question is whether this encompasses the subject matter of Article 90. The Minister of Foreign Affairs thought it did, but if the majority of the House articulates that this is not the case, there is a constitutional problem." 26 This statement, made in January 1996, was most probably the basis for the new formulation of the armed forces' mission statement.

2. Permissible Operations In principle all kinds of operations are permissible which fit within the mission as contained in Article 97 of the Constitution. This includes crisis management abroad, humanitarian aid at home and abroad, combined operations with civilian organisations and other public authorities under normal or unusual circumstances, such as a State of Emergency, natural and humanitarian disasters, evacuation of Dutch nationals abroad, and possible other cases.

25 26

Kamerstuk TK 1996-1997, 25 367 (R 1593), No. 3, p. 3 et seq. (author's translation). Kamerstuk 23 591, No. 6, p. 11 (author's translation).

560

Leonard F. M. Besselink

According to the constitutional principle of legality (an unwritten principle), the exercise of public authority towards the general public requires a basis in an Act of Parliament or in the Constitution itself. A basis in an Act of Parliament has been created for most operations of the armed forces which require the exercise of public authority towards the general public. a. Civilian Tasks for the Military Thus, civilian support and assistance tasks are usually based on the Politiewet (Police Act), Articles 58-60 and Wet rampen en zware ongevallen (Act on Disaster and Serious Accidents), Article 18. They have in recent years involved cases of (danger of) floods, clearing storm damage, road blocks, assistance in the foot and mouth disease emergency, and the defusing of explosives by the Explosives Ordnance Disposal Service (the Explosieven opruimingsdienst). It may be worth pointing out that the Koninklijke Marechaussee [Royal Military Constabulary] is one of the armed forces. It has a number of tasks which are semi-civilian, such as border control, police tasks at airports, protection of the royal family, the Central Bank, trans-border criminal investigations, and assistance of the regular police in its tasks. These tasks are regulated in the Politiewet. Recently, the 'war against terrorism' has fuelled the discussion on the intensification of cooperation between the armed forces and the police, and on abolishing the separation between them. The regular police has been very reticent in allowing military powers to extend into the field of policing.27 b. States of Emergency at Home There is a framework for official States of Emergency, based on Article 103 of the Constitution. States of Emergency allow for a role for the armed forces. This is particularly the case under the Oorlogswet voor Nederland [War (Emergencies) Act for the Netherlands], which grants the Minister of Defence and the military authorities wide ranging powers. The Emergency Situations Coordination Act, Coordinatiewet uitzonderingstoestanden28 does not distinguish between internal and external States of 27

See the report by a study-group of high police officers, the Commander-in-Chief of the Marechaussee and a number of scholars, Politie en krijgsmacht: Hun verhouding in de toekomst. Stichting Maatschappij, Veiligheid en Politie (Dordrecht, 2002); R.P.F. Bijkerk and G. P. Hut (eds.), De krijgsmacht binnenslands: bijstand, steun- en dienstverlening door militairen. Instituut Defensie Leergangen (Den Haag, 2002). 28

Stb. 1996, 365.

Military Law in the Netherlands

561

Emergency, but distinguishes between a limited state of emergency and a general State of Emergency. In the first case, certain provisions of certain acts mentioned in the so-called Α-list to this Act can be made operative by Royal Decree; while the same may happen during a general State of Emergency with provisions listed in the B-list attached to this Act. As to the powers of the military authorities, the Α-list allows activation of all or some of Articles 9 to 23 of the Oorlogswet, which covers powers to restrict the freedom of movement of persons, the right to evacuate areas, the duty to provide information, the right to diverge by military ordinance from the regulations of decentralised authorities, the right to empower other authorities to exercise some of the exceptional powers attributed to the military authorities. The B-list authorises the activation of some or all of the powers referred to in Articles 9 to 53 Oorlogswet. These powers include the deprivation of liberty, the duty of civil authorities to obey the instructions of the military authorities (except ministers, members of the judiciary, and the bodies mentioned in Chapter 4 of the Constitution (Council of State, General Chamber of Audit, National Ombudsman and Permanent Advisory Bodies), and far reaching powers to restrict the exercise of fundamental rights. No State of Emergency has ever been declared under Article 103 of the Constitution. c. Other

Operations

As long as the criteria of Article 97 (1) of the Constitution are observed, there seems to be no definite obstacle to the use of the armed forces for other purposes, including operations of evacuating Dutch citizens from other countries, whether carried out by the Dutch armed forces alone or in cooperation with other forces. Of course, such use of the armed forces may not interfere with existing legislation and must respect the competence of all other public authorities. Public international law has to be respected as well. The principle that public international law has to be respected at all times is an unwritten assumption. It follows from the monism which the Kingdom adheres to (which itself is another unwritten principle of the Constitution).29 That this is the case, 29

In a recent case, the President of the District Court at The Hague in interlocutory proceedings refused to grant an injunction against the government of the Netherlands (and its allies) forbidding them to threaten with or use armed force against persons or countries associated by the US with Bin Laden or the perpetrators of the attack of 11 September 2001. Allegedly, such use of force would be in contravention of Art. 51 of the U N Charter, customary public international law, and Art. 90 of the Constitution. Interestingly, the President of the District Court considered the threat or use of armed force to not be in opposition to Art. 90 of the Constitution, i.e. to not be contrary to the promotion of the development of the international legal order, which - as we saw - is an ele-

562

Leonard F. M. Besselink

has also been expressed explicitly in the Toetsingskader, the decisional frame of reference for sending troops abroad. Whether Article 97 (or even Article 90) of the Constitution can itself be considered the basis for deploying the armed forces in certain operations not covered by legislation in Acts of Parliament, particularly deploying them abroad, remains open to debate. This issue arose in the context of the question whether a soldier can be forced against his will to be sent abroad. Does the sending of troops, or forcing individual soldiers to be sent abroad, require a separate basis in an Act of Parliament, or does the constitutional mission of the armed forces itself grant the power to do so? As we saw above, the Centrale Raad van Beroep has assumed that the tasks described in (now) Article 97 (formerly 98) and 90 of the Constitution not only restrict the power to deploy the armed forces in a regulatory sense, but also empower the Government to deploy the armed forces within the limits of these constitutional provisions. This reading is not uncontroversial among some lawyers. Articles 90 and 98 have never been intended to confer powers, but only as a merely regulative description of the tasks the armed forces can legitimately pursue. Moreover, the criterion of "protection of the interests of the Kingdom" is, at least when taken abstractly, extremely broad.

3. Operations Undertaken Jointly with the Armed Forces of Another Country There is no explicit basis for undertaking any of these tasks jointly with foreign armed forces, nor is it explicitly forbidden. The Constitution in Article 92 provides that "legislative, executive and judicial powers may be conferred on international organisations under public international law, by or pursuant to a treaty, subject, where necessary, to the provisions of Article 91 (3)." Article 91 (3) states that if a treaty "departs from the Constitution or leads to departure from it, it may be approved by the Houses of the States General only with at least a majority of two thirds of the votes cast." This might suggest a contrario that a treaty which confers certain powers to another state or states is not allowed. However, the Raad van State, Council of State, in an advisory opinion on the constitutionality of the deployment of American Pershings on Dutch territory rejected the view that Article 92 excludes the possibility of constitutionally conferring powers on another state, though without clearly explaining why this

ment of Art. 97 of the Constitution as well. This suggests that these provisions are justiciable and set limits to the use of armed force. See President Rechtbank Den Haag, 26 October 2001, KG 01/1219, at under number LJN AD4855.

Military Law in the Netherlands

563

should be so.30 Presumably the reasoning which was put forward in a different context applies also to Article 92: there is no constitutional claim on exclusive sovereignty which cannot be restricted by international treaty provisions. It is the view of the Council of State that relinquishing sovereign powers is not contrary to the Constitution. This view is widely shared in the Netherlands.

4. Constitutional Powers a. The Position of the Head of

State

The Head of State is an hereditary office, which since 1815 has been occupied by a King or Queen. From 1890 to the present day, the Head of State has been a Queen. The Head of State has, in general, no powers that can be exercised independently, because since 1848 the King can act only under ministerial responsibility. The Constitution expresses this as follows: Article 42: 1. The Government shall be comprised of the King and the Ministers. 2. The King is inviolable; the Ministers shall be responsible. Primary political power, however, is concentrated in the Council of Ministers: Article 45: 1. The Ministers together shall constitute the Council of Ministers 2. The Prime Minister shall chair the Council of Ministers. 3. The Council of Ministers shall consider and decide upon overall Government policy and shall promote the coherence thereof. Furthermore, under the pre-1983 Constitution, the expression "the King shall have supreme authority over the armed forces" did not confer autonomous powers on the Head of State. Certain decisions take the form of a Royal Decree, which requires the cooperation of the Head of State in the form of his signature. We must assume that this does not pose very many problems in current practice, as there are very few issues concerning the actual use of the armed forces which require a Royal Decree. However, in some cases an appointment in the armed forces is made by Royal Decree.31 Promotions can also be 30

Advies Raad van State inzake grondwettlijke aspecten verbonden aan plaatsing van kruisvluchtwapens [Advisory Opinion of the Council of State concerning constitutional aspects of the deployment of cruise missiles], 23 December 1983, Kamerstukken 1983-1984, 17890 A. 31

Art. 4 (2) and (4) AMAR: when on appointment an officer's rank is granted, and when it concerns a member of the Royal House, Koninklijk Huis; this includes the Queen Con-

564

Leonard F. M. Besselink

made by Royal Decree. 32 It is also possible to equate foreign soldiers (vreemde militairen) with Dutch soldiers for the application of provisions to be specified by Royal Decree. Previous heads of state, notably Wilhelmina (Head of State from 1890-1948), have had strong opinions about the role of the armed forces (she was anti-pacifist and resented the calling of the First Hague Peace Conference; her moral authority was of major importance during the Second World War, when the Government resided in London); her daughter Juliana (Head of State from 1948-1980), to the contrary, had pacifist inclinations.33

b. The Powers of the Government Article 97 (2) now reads: "The Government shall have supreme authority over the armed forces." In conjunction with Article 45 (quoted above), this implies that final responsibility and competence with regard to the use of the armed forces rests with the Council of Ministers. The Rules of Procedure of the Council, however, are surprisingly lacunal with regard to military affairs. The long list of issues it contains, which need to be discussed and decided in the Council of Ministers, do not mention any defence or military matters. However, there is the possibility under paragraph 4 of the Rules of Procedure of the Council of Ministers to set up sub-councils. These can deal with parts of the general Government policy, such as military affairs. At one time there was a sub-council of the Council of Ministers, the so-called Algemene Verdedigingsraad, the

sort, all heirs to the throne and their spouses; the term "Royal House" should not be confused with the "Royal Family", which also comprises the family members who have lost their rights to the throne, which - at the moment - are those who have entered into marriage without permission granted by Act of Parliament. 32 Art. 27 (1) sums up a number of promotions by Royal Decree; however, paragraph 2 specifies that this competence can be delegated to the Minister of Defence unless it concerns so-called "flag or supreme officers", vlag- of opperofficieen (which comprises the ranks of brigadier-general - in the navy and air force: commodore - to general), promotion of a member of the Royal House (see previous footnote) or a member of the Royal Military Household, Militaire Huis van de Koningin. 33 About the present Queen Beatrix there is the possibly apocryphal anecdote that she promoted an officer by a Royal Decree on a paper table napkin, when stuck in a boat in the mist on the Scheldt when visiting some of the water works, in the early 1980s. In the Netherlands, a Royal Decree need not be made on the initiative of a minister, but can be taken by the Queen on her own initiative. She is said to have used this option (which is are) when in a conversation with an officer on board the ship, she came to understand that his promotion to a higher rank was suffering under a bureaucratic hold up at the Ministry of Defence. According to the anecdote, she took a paper napkin, wrote down the decree promoting the officer and requested the Minister of Transport and Water Management, who happened to accompany her, to countersign the decree.

Military Law in the Netherlands

565

General Defence Council. This Council had as its task to prepare the decisionmaking by the Council of Ministers concerning military and civil defence preparation (including important decisions on investment), and matters concerning the functioning of the Government under extraordinary circumstances. The General Defence Council was chaired by the Prime Minister, while the Minister of Defence was the coordinating minister. It had as further members, apart from a number of ministers and state secretaries, the Chief of Defence Staff and the commanders-in-chief of the army, navy and air force. This General Defence Council seems to have met rarely.34 The General Defence Council was succeeded by another sub-council of the Council of Ministers in 1996, the Raad voor Europese en Internationale Aangelegenheden (REIA), Council for European and International Affairs.35 The task of this council is to prepare the decision-making of the Council of Ministers with regard to (amongst other affairs) "all important internal and external questions concerning the EU, WEU, NATO, and UN, ... the main matters of defence policy, including important decisions on investments; the participation of the Netherlands in peace operations ...". 36 This Council is chaired by the Prime Minister, and the Minister of Foreign Affairs acts as coordinating minister of the Council; that is to say, he is to see to the proper inter-departmental preparation of the meetings of the Council. The Minister of Defence is always a member of this council. The Government has proposed the formation of a "core group" of ministers to decide on special military operations. Special military operations include special operations for gathering information for intelligence purposes, special arrests, attacks on selected targets, military assistance to allied powers, evacuation of compatriots from life-threatening situations, and measures against international terrorism.37 As far as can presently be judged, this core group has indeed been formed, although the relevant decision has not been officially published (as was done in other cases). Although Article 17 of the Rules of Procedure of the Council of Ministers states that sub-councils can be formed "for the preparation of or the decision of certain parts of the overall Government policy", it is doubtful whether the delegation of the relevant decision-making powers of the Council of Ministers to such sub-councils is constitutional, as this would detract from

34

See R. J. Hoekstra, Ministerraad en vorming van regeringsbeleid ( Ζ wolle, 1988), p. 36.

35

Decree of the Prime Minister acting in accordance with the views of the Council of Ministers of 2 February 1996, Art. 5, Staatscourant 1996, No. 32, p. 6.

36 37

Decree of the Prime Minister, Art. 2 sub b, e and f.

Letter of the Minister of Defence to the Speaker of the Lower House, Kamerstuk 26 800 X, No. 46 (The Hague, 23 August 2000); see also 27 400 X 2001, No. 29.

566

Leonard F. M. Besselink

the constitutional principle that it is the Council which decides about the overall Government policy (Article 45 (3) Constitution, quoted above). To this extent the core group cannot have such decisive powers, although the Government may seem to suggest otherwise. The Bakker Committee (mentioned above) made a general recommendation to form a sub-council with decisional powers with regard to the deployment of troops abroad. 38 This recommendation has so far not been carried out, possibly because of the constitutional implications. c. The Participation of Parliament in the Decision to Deploy the Armed Forces The Constitution contains a seemingly old-fashioned provision which we have not yet mentioned, but which potentially could give Parliament considerable leverage over Government decisions concerning the use of the armed forces in international operations. Article 96: 1. A declaration that the Kingdom is in a State of War shall not be made without the prior approval of the States General. 2. Such approval shall not be required in cases where consultation with Parliament proves to be impossible as a consequence of the actual existence of a State of War. 3. The two Houses of the States General shall consider and decide upon the matter in joint session. 4. The provisions of the first and third paragraphs shall apply mutatis mutandis to a declaration that a State of War has ceased. This provision may seem a remembrance of times long past, in which heralds on horseback set out to announce war to the enemy. But this is a misconstruction, given its introduction only in 1922, its modernisation in 1953 and its reconfirmation during the revision of the Constitution in 1983. However, the provisions of Article 96 of the Constitution were considered to be inapplicable to situations in which an actual war was not formally declared. The issue arose in the Second Gulf War and reached the President of the District Court of The Hague in summary proceedings, which followed the view put forward by the Government that only when a war is formally declared, does it need parliamentary consent. This view was apparently endorsed by the Lower House. 39 The

38 Report of the Tijdelijke Commissie besluitvorming uitzendingen, (Bakker Committee), Tweede Kamer, vergaderjaar 1999-2000, 26 454, No. 7-8, p. 495, recommendation 19. 39

TK 1990-1991, 21 664, No. 25; President Rechtbank's Gravenhage 11 January 1991.

Military Law in the Netherlands

567

reasons for viewing this as a misconstruction are multitude. First of all, the provision intentionally does not refer to a "declaration of war" in the sense of classic international law, but literally only to a "declaration of being at war", in oorlog verklaring. This quite distinct meaning was emphasised during the amendment of this provision in 1953. Furthermore, the constitutional history of the provision strongly suggests that multinational operations, even those carried out under the aegis of international organisations, may also amount to "war" in the sense of the present Article 96. This was already pointed out when the provision was first introduced in 1922 with reference to the use of armed force under the Covenant of the League of Nations. In 1953 an exception to parliamentary consent in case of a restoration of the international legal order on the basis of international treaty obligations, was explicitly rejected for the reason that the procedure of parliamentary consent could also apply to a restoration of peace under either the NATO, WEU treaties or the UN Charter. Also the logic of the present interpretation is doubtful: it suggests that the lesser act (declaring war without Parliament's approval) is not allowed, while the act of major importance (fighting a war without Parliament's approval) is permitted. In any event, the refusal to introduce a true right of parliamentary approval for the decision to send troops abroad seems to be further confirmation of the view that Article 96 is no longer considered to apply to warfare through multinational military entities and operations, but merely refers to a declaration of war. The formal declaration of war has, in the practice of public international law, disappeared in the form in which it once existed, and probably has fallen into desuetudo also in normative terms (notwithstanding the continued existence of the relevant Hague Convention). The newly introduced Article 100 obliges the Government to provide prior information to the States General concerning the deployment or making available of the armed forces for the maintenance or promotion of the international rule of law. This includes providing information concerning the engagement or making available of the armed forces for humanitarian assistance in cases of armed conflict. These obligations to provide information do not apply if peremptory considerations prevent the prior provision of information. In this case, the information shall be provided as soon as possible. Since its becoming operative, this provision has raised a number of questions as to the moment at which Parliament becomes involved in the decisionmaking process. Also, the scope of the type of actions covered by this provision has been the object of discussion. As to the timing, it is unclear at which particular moment Parliament is to be informed. Various activation alerts in the NATO-procedures could be relevant moments. Also in other international operations it is not always clear when Parliament should be informed in the sense of Article 100. A problem is

568

Leonard F. M. Besselink

the extent to which the duty to provide information is in fact a duty to have the consent of Parliament. At the time of the introduction of this provision in the Constitution, both Parliament and Government spoke about a 'material right of approval' (though it formally does not exist). The idea was that if the Government is to provide Parliament with information concerning the decision to participate in international operations, Parliament will be able to express its dissent, which makes it difficult for the Government to proceed with participation in the operations. This being so, several members of Parliament have assumed that the duty to inform Parliament exists before the decision to participate is definitive; otherwise, Parliament cannot fruitfully discuss the information provided by the Government. But at what stage in the decision-making process is this? The Government has taken the position that it has to inform Parliament when the Council of Ministers has taken the decision to participate, but before this decision is carried out. The Bakker Committee found that Parliament should already be informed before the Council of Ministers takes the decision to participate. Another problem of a procedural nature related to the alleged 'material right of approval', is the question of how the Government is to proceed when one of the two Houses of Parliament disagrees with participation and the other House agrees to it. As to the scope of the duty under Article 100, the Government took the view that participation in international operations which are based on treaty obligations, fall outside the scope of this provision. Although at the time Article 100 was passed, the Government had suggested the opposite,40 when it came to it in the aftermath of 11 September 2001, the Government boldly stated that there was no duty to inform Parliament under Article 100 of the Constitution if the Dutch armed forces were to participate in international military operations under Article 5 of the NATO-Treaty. There are good reasons to reject this approach,41 but it seems that members of the Lower House accept it, although their view is not generally shared.42 40

Kamerstuk EK 25 367 (R 1593), No. 226b, p. 5, where the Government explicitly rejected the view expressed by a Member of Parliament that NATO and WEU obligations fell outside the scope of Art. 100, see EK 24 367 (R 1593), No. 226a, p. 5; also the Minister of the Interior at Handelingen EK [Proceedings of the Upper House] 3 maart 1998, 22-1071; the Minister of Defence was more hesitant, Handelingen EK 3 maart 1998, 22-1074. 41

See L. F. M. Besselink, Militaire acties en de rol van het Parlement, (2001) No. 39 NJB, pp. 1883-1887. 42

Various statements by the spokesman for the Partij van de Arbeid (Labour) on several occasions seem to indicate his disagreement with the government's approach on this issue. Also a number of Members of the Upper House have expressed dissent; see for

Military Law in the Netherlands

569

As to the content of the information to be provided, the parliamentary debates on Article 100 of the Constitution and Article 5 of the NATO-Treaty reveal that the Government is of the opinion that there is no constitutional obligation to inform Parliament of the various negotiations leading up to the decision to participate in international military actions.43 The Bakker Committee has recommended the creation of binding regulations on this point. This could only be achieved by means of an Act of Parliament. This recommendation has not been discussed seriously, although a war powers act could solve many legal uncertainties as to the role of Parliament. d. The Functions of the Minister of Defence

Under Dutch constitutional law, a minister is responsible for the ministerial department which he heads. Thus the Minister of Defence has primary responsibility with regard to the armed forces, which are formally part of the Ministry of Defence. In the Netherlands, there is not only collective but also individual ministerial responsibility, and individual ministers can be the object of a parliamentary vote of no-confidence, which forces him or her to resign under an unwritten rule firmly entrenched in constitutional law since the 1860s. Also defence ministers and their state secretaries have been the object of such votes of no confidence. The political explanation for an individual vote of censure is that the minister holds special responsibility as head of the ministry. So in cases which cannot be reduced to matters for which the Government as a whole is responsible, but are merely matters of the ministry, the individual minister is held to account. In fact, the threat of a motion of censure is such, that ministers and state secretaries often do not await such a vote of censure, but draw their conclusions as soon as they feel they no longer enjoy sufficient support in Parliament. Thus a Secretary of State (to whom the rule of confidence applies as well) was forced to resign after it was revealed that he had bought helmets of inferior quality for the army and failed to deal with this properly.44 In the 1980s, a Minister of Defence felt forced to resign when three scandals accumulated -

instance their written questions, Aanhangsel Handelingen ΕΚ [Appendix Proceedings of the Upper House], No. 11, 5 April 2002. 43

Handelingen Tweede Kamer 20 September 2001, TK 3-107, in which the Prime Minister said that there was "no constitutional duty to inform Parliament about the phases of international consultation and decision-making preceding the decision in the Council of Ministers. Let there be no misunderstanding about this."

44

F.J. Kranenburg, State Secretary of War in charge of material from 1 June 1951 to 1 June 1958.

570

Leonard F. M. Besselink

this minister became Secretary General of the WEU.45 Of course, it is also possible that Parliament loses confidence in a minister due to reasons connected with his or her personal conduct. Thus a Minister of Defence had to resign in 1959 because of a love affair with an American woman who was not yet divorced.46 e. The Role of the Military Leadership The commanders of the various branches of the forces are represented in meetings with the political leadership which concern international operations. There are several relevant fora. In the old Algemene Verdedigingsraad the CDS and Commanders-in-Chief of the army, navy, and air force were represented (see above). The successor to this sub-council of the Council of Ministers, REIA, does not have any member of the military leadership among its members. However, according to the decision establishing this Council, each minister can be accompanied by one ambtenaar, which could be a military official (as these are, as will be explained below, also ambtenaar) such as the Chief of Defence Staff or a Commander-in-Chief of one of the forces.47 The Prime Minister can - depending on the item on the agenda - invite others to the meetings of the Council, among them the Permanent Representative at the NATO, WEU, and UN.48 Judging by the institutional framework, the representation of the military leadership has altogether decreased at the level of decision-making in the Council of Ministers. In practice, this has also meant that the Ministry of Defence and in particular the (branches of the) armed forces have not been exposed to views, input, or criticism of other relevant ministries. This may well have contributed to the (continued) inward orientation of military culture (and the culture of the Ministry of Defence as a whole).49 At the level of the Ministry of Defence, the linchpin function between the political and military leadership could - at least on paper - be played by the

45

Dr. W. F. van Eekelen, Minister of Defence from 14 July 1986 to 6 September 1988.

46

S. J. van den Bergh, Minister of Defence from 19 May 1959 to 1 August 1959.

47

Decree of the Prime Minister, Art. 3 (5).

48

Art. 3 (7).

49

See Adviescommissie Opperbevelhebberschap, Van Wankel Evenwicht Naar Versterkte Defensieorganisatie [From Unstable Equilibrium to a Reinforced Defence Organisation] (Den Haag, 19 April 2002), which concludes that the inward orientation is exacerbated by the fact that the military is not organised as one organisation, but is no more than the sum of the highly individual and separately functioning branches of the armed forces. In my opinion, the problems to which this leads "undermine the political responsibility for the functioning of the defence organisation", p. 23.

Military Law in the Netherlands

571

Chief of Defence Staff (CDS), an office created in 1976 (regarding his position see also the organisational chart of the top of the Ministry of Defence, below). From a staff member at central level, he gradually evolved into a corporate planner and operator. Of all military officers, he holds the highest rank. According to the officially published Algemeen organisatiebesluit Defensie 1992, the 1992 General Organisational Decree of the Minister of Defence, the CDS directs the Defence Staff and is charged, amongst other things, with the development of and advice concerning main aspects of operational policy, the attuning of operational policy to the general defence policy and its communication to the Commanders-in-Chief, care for policy advice on and coordination of special operational matters, such as peace operations or other operations which should take place under the direct supervision of the Minister of Defence, at the express decision of the Minister of Defence, the directing of these operations if their nature requires it, and tendering advice on international military cooperation.50 This description of his tasks is the only version officially published. However, the role of the CDS has, since 1992, been reinforced considerably with regard to all crisis management, peace, and humanitarian operations other than those with regard to which an obligation exists under the WEU and NATO treaties. According to a letter of the Minister of Defence of 20 October 1995 to the Lower House, the CDS has the sole authority over planning, preparation and (supervision over the) execution of such operations (notwithstanding the competence to grant an executive mandate to the Commanders-in-Chief of the various forces).51 Although the Defence Staff has always had the task of processing requests for participation in various kinds of international operations, the main emphasis both in the preparation and execution of defence policy with regard to multinational tasks used to be on the Commanders-in-Chief of the separate branches of the armed forces. It should be remarked that the Commanders-inChief of the service branches are not organisationally subordinate to the CDS. The CDS's staff is small and comes mainly from these separate branches, and the members tend to retain their service branch loyalty. This has led to various problems in carrying out multinational operations. These problems had

50 51

Algemeen organisatiebesluit Defensie 1992, Art. 5, sub b, c, d and e.

Kamerstuk 24 464, No. 1, pp. 8 et seq.; changes in this direction seem to have been made earlier in 1995; they were referred to in an unspecified manner in a letter of 28 August 1995 (on the fall of Srebrenica) Kamerstuk 22 181, No. 115, p. 13, while a letter of the M o D of 4 September 1995 to the Lower House gives a more detailed description, Kamerstuk 22 181, No. 121, p. 2. In the meantime, the Ministry of Defence has informed the author of the changed text of the Algemeen organisatiebesluit Defensie, this text has not been published.

572

Leonard F. M. Besselink

already come to light in the aftermath of the Srebrenica affair,52 but it was the evaluation of the planning of the UNMEE operation which revealed most acutely the inability of the various service branches' inability to cooperate and coordinate, and the willingness to let one's own service interest prevail over the common interest of the various parts of the armed forces. These problems could not be solved under the supervision of the CDS. In addition, the stream of information from the military to the political leadership proved faulty, and as a consequence Parliament was not always adequately informed.53 The role attributed to the CDS should be seen against the present organisational background. The ministry has been an organisation in which the various branches of the armed forces operated almost fully independently from each other, each with their own staffs at many levels, competing with each other and even with policy priorities and decisions at the central level. For a number of years, the desirability of a development towards a more unified military control at the top of the organisation has been recognised as an official policy goal. Presumably the enhanced profile of the CDS's role with regard to policy advice and decision-making in multinational operations contributed to assigning him a prominent role more generally. In August 2001, the Minister of Defence decided to install a committee of four wise men to give their recommendations on the desirable role of the CDS, particularly about the question of whether he should become supreme commander.54 The committee, the Advisory Committee on the Supreme Command, presented its views in April 2002, just around the time that the Srebrenica-Report appeared, which pushed the report of the Advisory Comittee on Supreme Command into the political background.55 This Committee proposed that the operational staffs of the army, navy, and air force be merged into one general operational headquarters in The Hague under the leadership of the CDS, who would acquire responsibility for the planning and execution of all operations in which the Netherlands participates. According to the Committee, the CDS should have a deputy-CDS with operational competence over units and capacity used abroad, and another deputyCDS with planning competence. The CDS should become the military equal and counterpart of the Secretary General at the Ministry of Defence, while the 52

Kamerstuk 22181, No. 119, pp. 30 et seq.

53

Kamerstuk 22831, No. 37 and 38; Aanhangsel Handelingen TK [Appendix Proceedings of the Lower House], 2000-2001, No. 119; Kamerstuk 27693, No. 1. 54 Press bulletin 20-8-2001, DV/PB79, published at , (28/8/2001); see also the official ministerial decision of the Ministers of Defence and the Interior of 28 September 2001, Staatscourant 2001, No. 189, p. 7. 55

Adviescommissie Opperbevelhebberschap, 'Van Wankel Evenwicht Naar Versterkte Defensieorganisatie', supra n. 49.

Military Law in the Netherlands

573

latter should become the head of a streamlined and reorganised policy department. Although they did not include it in their recommendations, the Committee indicated in the summary of the report that the CDS should not become the Supreme Commander of the armed forces, on the grounds that full responsibility should remain with the Government. Nevertheless, his role should become both structurally and in practice a crucial one in an organisation which should become triangular in more than one. The Algemene Rekenkamer, General Chamber of Audit, has been highly critical of the absence of clear legal rules and regulations concerning competence and responsibilities as between the minister, the various service branches, and the CDS: "This can frustrate a clear division of responsibilities between the Government and the armed forces and within the armed forces. There is no clear separation between the constitutional ultimate authority of the Government over the armed forces and the military concept of 'full command'. The solution chosen (viz. a separation between political ultimate authority and military ultimate authority) has not been formalised into rules." 56

5. Parliamentary Control a. The Parliament's Powers to Control the Armed Forces Above, we briefly discussed the involvement of Parliament in decisions to employ the armed forces in international operations. Summarising the various competences of Parliament, we can say that they have the specific power to prevent the declaration that the Netherlands is at war (Article 96 Constitution), and that they have the right to be informed about a decision of the Government to deploy the armed forces in a certain number of international operations (Article 100 of the Constitution). General powers (which also exist towards other ministries and governmental agencies) are the power to request information (which must be honoured under Article 68 of the Constitution). This may take the form of anything from oral or written questions or a request for a debate on the floor of Parliament, or a fully fledged parliamentary investigation with the right to compel witnesses to appear and to give testimony under oath (the so-called enquête). All this can lead to the sanction of a vote of no-confidence, which due to customary constitutional law forces the cabinet to resign, as we already indicated above.

56 Report General Chamber of Audit, 8 December 1999, Kamerstuk 26950, No. 1-2, pp. 10 et seq. (author's translation).

574

Leonard F. M. Besselink

Parliamentary control of the armed forces through the accountability of the Minister of Defence is facilitated by the existence of a Standing Committee for Defence in each of the Houses of Parliament. There is as yet no special form of parliamentary control over international "special missions" which require secrecy or strict confidentiality, and do not require prior information to be provided to Parliament (see Article 100 (2)), although ways and means are considered by the Government to enable some form of accountability to Parliament also with regard to these actions.57 Also through their powers of legislation, the need for parliamentary approval of treaties (Article 91 Constitution) and the power of the purse, Parliament can exert control over the armed forces through their control over the Minister of Defence and the Council of Ministers. The powers reserved by the Constitution to the Legislature - that is to say the matters which need regulation by Act of Parliament - are the draft (Article 98), conscientious objection (Article 99), and the quartering and provision of troops by the general population (Article 102). Moreover, Article 109 requires an Act of Parliament as an instrument for the determination of the legal status of civil servants. Professional soldiers are civil servants (ambtenaar) in the sense of this provision. As we presently have professional soldiers only, this provision means that anything affecting the rights and duties of soldiers requires a basis in an Act of Parliament. Also the restriction of fundamental rights guaranteed by the first chapter of the Constitution need in general to be based on, or sometimes to be contained in, an Act of Parliament. b. The Treaty Power The Constitution provides in Article 90 (1) the general rule that the Kingdom cannot be bound to an international treaty except with prior approval by the States-General (Parliament). The term "treaty" is heteronomous; it is not a term defined by national constitutional law, but by public international law. In the constitutional practice it is defined as "each international agreement which has been put in writing and which, according to the criteria of public international law, is binding upon the state."58 This must be understood to refer not only to "written agreements" of which the written text is the original instrument, but also to oral agreements which the government may have put into writing. The term "agreement" must be understood to refer to a multilateral 57 58

Bakker-report, ibid., pp. 33 et seq.

Aanwijzingen voor de regelgeving, 1993, Aanwijzing 304: "Onder verdrag wordt verstaan: iedere op schrift gestelde overeenkomst die volgens volkenrechtelijke criteria voor de Staat verbindend is".

Military Law in the Netherlands

575

legal act aimed at being legally binding. Thus, it excludes the concerted unilateral acts of a self-binding nature, which live by names such as "administrative agreements" and "memorandum of understanding", although, confusingly, these names are also used for treaties in the proper sense. In these "administrative agreements" it is not the multilateral volitional act and intention which constitutes a legally binding duty as an objective intent separate from the individual subjective volition of the parties.59 In the military field there are many such concerted unilateral agreements. Most of the integrated military command structures of NATO and many other forms of multinational cooperation in the military field are based on such "agreements" and are therefore outside the direct control of Parliament. Most often they also remain unpublished, which makes academic research in the field of military law and international military cooperation a sometimes difficult task. The manner in which the approval is to be given to treaties, and the exceptions to the requirement of parliamentary approval, are described in the Rijkswet goedkeuring en bekendmaking verdragen, the Act for the Realm on the Approval and Publication of Treaties. Among the exceptions to the rule of prior approval are treaties which have a validity of no more than a year and do not entail significant financial burdens, treaties which implement a treaty which has already been approved, and treaties which an Act of Parliament has determined do not require approval. Also, in exceptional circumstances of a peremptory nature, if the interest of the Kingdom necessitates that the treaty be secret or confidential, no prior approval is required (Article 7 Rijkswet goedkeuring). Examples of temporary treaties which do not entail high costs are status of forces agreements negotiated with a view to a foreign operation, for instance the stationing of Apache helicopters in Djibouti in order to the possible necessity of extracting UNMEE troops,60 or for military exercises abroad, such as a treaty with Tanzania for the purpose of the military exercise Tanzanite 2002.61 Approval of a treaty can either be tacit or explicit. It is up to the Government to submit a treaty for tacit or explicit approval, unless the treaty diverges from the Constitution; in which case explicit approval is required. Express approval is given by an Act of Parliament. An Act of Parliament approving a treaty has as its major clause a provision which states that the rele-

59

On this and other constitutional aspects, see L. F. M. Besselink, De staatsrechtelijke regeling van de aanvaarding en invoering van verdragen in Nederland (Tjeenk Willink, 1996). 60

Tractatenblad 2001, 39.

61

Tractatenblad 2002, 31.

576

Leonard F. M. Besselink

vant treaty is approved - the treaty itself is not part of the relevant Act. Tacit approval is given by submitting the text for the purpose of approval to both Houses of Parliament. Tacit approval is granted unless, within 30 days, by or on behalf of either House or one fifth of the constitutional number of its members, the wish has been expressed that the treaty be approved expressly (Article 5 Rijkswet goedkeuring). A treaty the provisions of which diverge from provisions of the Constitution, or necessitate such a divergence, can only be approved with a majority of two thirds of the vote in each House of Parliament (Article 91 (3) Constitution). The Treaty establishing the European Defence Community is one of the very few treaties which Parliament (and Government) have considered to necessitate a divergence from the Constitution. c. Other Forms of Control There are several other forms of control of the armed forces which deserve mention. Among them are ombudsperson institutions. These are not so strictly related to Parliament as in some other countries. One of them is definitely not of the parliamentary type, but of the executive type. This is the InspectorGeneral of the Armed Forces (Inspecteur-Generaal voor de krijgsmacht - IGK). This office has existed since 1813. The IGK has competence to tender his advice on personnel and organisational affairs, and all other matters concerning the armed forces, to the Minister of Defence. The office has developed in such a manner that the Inspector-General is now considered to be the "military ombudsperson". 62 In order to ensure his impartiality and independence, he is not part of the core Ministry (the "Ministry in The Hague"). Any (former or current) member of staff can approach him to request mediation or an inquiry. The IGK has no power to decide issues, but can decide to inform the Minister of Defence about them and submit his views. The National Ombudsman is the normal civilian general ombudsperson institution of the Netherlands at the national level. His competence extends also to any act under the responsibility of the Minister of Defence and those acting under his authority (including military service-members). The number of complaints received concerning this ministry is low. On a total of 8242 complaints received in the year 2000, only 53 regarded the Ministry of Defence.63

62

In some countries the official name of the general ombudsman institution is "Inspectorate general". 63 Jaarverslag Nationale ombudsman 2000, Kamerstuk 27 645, No. 2.

Military Law in the Netherlands

577

Only in some 10 cases per year (or fewer) does a complaint regarding the Ministry of Defence lead to a report by the National Ombudsman; other complaints do not lead to an investigation because of issues of competence or admissibility, or because they are dealt with otherwise (so-called direct intervention by the Ombudsman). Complaints to the National Ombudsman come both from members of the public and members of the armed forces. The National Ombudsman is appointed by the Lower House and reports yearly to the Lower House, but otherwise he functions entirely independently.64 Complaints from members of the public mainly concern treatment by the Koninklijke Marechaussee (which is charged, amongst other things, with border controls, and hence deals as a first line instance with immigration and asylum requests at the border); the complaints from members of the armed forces in recent years have concerned undue delays in treating such matters as payment of social benefits. One report of the National Ombudsman of 1999 drew much public attention and concerned a number of incidents with AP-23 mines, especially two accidents in 1983 and 1984 with 8 casualties. The investigation was undertaken at the request of the Standing Committee for Defence of the Lower House. In this case the National Ombudsman reached negative conclusions as to the manner in which the Ministry of Defence had dealt with such a broad range of issues such as the results of a test report from 1970 (!) proving that these mines were unsafe, the handling of the accidents, the communication with the dependents of victims, and the views it had taken on responsibility and liability. In 1998, the National Ombudsman investigated the aftermath of a disaster with a military Hercules aircraft in which all passengers died. Also in 1998, the National Ombudsman dealt with a complaint against the manner in which the Inspector General of the Armed Forces had dealt with two complaints, thus showing that in a sense the National Ombudsman acts as an appeal from the Inspector General; the National Ombudsman found that the complaint was unfounded. Apart from the ombudsperson institutions, some outside supervision of the armed forces is exercised by the Committees for Petitions of the Lower and Upper Houses, which can deal with individual petitions regarding the armed forces. These receive few individual petitions which can be dealt with in the 64

For a brief English language description of the Netherlands Ombudsman, see the chapter on the Netherlands in: K. Hossain, L. F. M. Besselink (executive ed.), H. Selassie gebre Selassie, E. L. M. Voelker (eds.), Human Rights Commissions and Ombudsman Offices: National Experiences throughout the World (London/ The Hague/ Boston, 2001).

578

Leonard F. M. Besselink

form of investigating a complaint. In recent years, between 1 and 4 such complaints have been dealt with, most of which concern military pensions. The Algemene Rekenkamer (General Chamber of Audit) has powers of investigating the financial affairs of the Ministry of Defence, including all branches of the armed forces. It verifies the legality and appropriateness of expenditure. With regard to appropriateness of expenditure, it also investigates more general issues. Thus a critical report reviewing international military cooperation was presented in December 1999; it concerned the Admiraal Benelux (ABNL), UK/NL Landing Force (UK/NL LF), the 1 (German/Netherlands) Corps and Deployable Air Task Force (DATF). Regarding the Admiraal Benelux, it concluded that no extra value could be discovered in the cooperation. The effectiveness and efficiency of the others could not be measured due to (amongst other things) lack of operational criteria which these military organisations use to establish output. It also found that with "all four forms of cooperation, the organisational structure and the form of the management structure were at least complex and in part not well-regulated. The management information regarding the cooperative effort is insufficient to provide insight into its results."65

III. The Structure of the Armed Forces 1. The Armed Forces and their Administration The administration of the military is not separate from the armed forces themselves. Part of the administration is the 'core department' in The Hague, but this is not exclusively civilian. The management principle governing the organisation is that of 'central directing with decentralised implementation and execution' (centrale regie en decentrale uitvoering) in which central direction is on main lines only. The intention is to find a balance between centralisation and decentralised management.66 Again, the choice of this administrative policy principle must be understood against a background in which the three main branches of the armed forces each used to have their own centralised staffs. The process of cutting back on defence expenditure which set in in the early 1990's, has made a leaner and more transparent defence organisation necessary. The

65

Report General Chamber of Audit, 8 December 1999, Kamerstuk 26950, No. 1-2, pp. 17 (author's translation). 66

See chapter 3.2 of the Defensienota 2000, pp. 62 et seq.; the Defensienota 2000 is published also as Kamerstuk 26 900, No. 2.

Military Law in the Netherlands

579

more centralised role of the CDS mentioned above, is one aspect of this. Another is the establishment in 1996 of the Defensie Interservice Commando, Defence Interservice Commando (DICO) as a new branch of the armed forces, providing in a combined fashion a number of central support services to the other branches of the armed forces, so that these could concentrate better on their core activities.67 It is a military institution. The CDS, Secretary-General, Directors-General for Economics, Finance and Control (DGEFC), Material and Personnel (DGMP) are the top level officials in the core department, which is supplemented with directorates for General Policy Affairs (Dab), Public Information (DV), Legal Affairs (DJZ) and the Audit Service (Defac). The Military Intelligence Service is also placed in the core ministry. There is no explicit legal basis for any of these organisational matters other than that they are based on decisions by the Minister of Defence, who derives this competence from Article 44 (1) of the Constitution: "Ministries shall be established by Royal Decree. They shall be headed by a minister."

2. Procurement of Material and Supplies for the Armed Forces The process of procurement centrally and necessarily involves the DGMP, a civilian institution which is part of the core ministry. The planning cycle does begin, however, in the relevant branch of the armed forces, which also plays a key executive role in procurement processes. This process is administrative in nature and is not codified in legal rules. What one can say is that the branch of the forces involved has a key role to play in putting forward the request for procurement of material. Also, in practice their opinion on the desirability of the acquisition of a certain type of material is not negligible.

67

It comprises two agencies: Dienst Gebouwen, Werken en Terreinen (DGW&T), the Defensie Telematica Organisatie (DTO); and eleven service units: Defensie Werving en Selectie (DWS), Diensten voor Geestelijke Verzorging (DGV), Militair Geneeskundig Facilitair Bedrijf (MGFB), Defensie Verkeers- en Vervoersorganisatie (DVYO), Instituut Defensie Leergangen (IDL), de Dienst Militaire Pensioenen (DMP), Dienst Personeels- en Salarisadministratie (PSA), Defensie Materieel Codificatiecentrum (DMC), het Defensie Archieven-, Registratie- en Informatiecentrum (DARIC), Bureau Internationale Militaire Sport (BIMS), de Maatschappelijke Dienst Defensie (MDD).

580

Leonard F. M. Besselink

IV. Soldiers' Rights and Duties 1. Restrictions of Fundamental Rights of Soldiers a. General Aspects Before one can make any statements about 'restrictions' on fundamental rights, it should first be determined whether such rights apply at all to soldiers. Fundamental rights, as contained in the constitutional instruments, are primarily concerned with securing the rights of citizens against public authorities. They do not aim to regulate the position of public authorities inter se. In principle, soldiers exert public authority. Hence their acts and legal position are entirely covered by public law. Nevertheless, it is now commonly accepted that soldiers (and civil servants) enjoy and exercise fundamental rights in principle. This goes for both the fundamental rights contained in the Constitution and the rights contained in human rights treaties (to the extent that these are self-executing). In this respect, no difference exists between "professional" soldiers and conscripts, although sometimes one can sense that some difference is made between them. The professionals have voluntarily entered into a special relationship with public authorities - they have in a certain sense given up being a citizen - while conscripts have been involuntarily drafted - they have in a sense remained citizens. This type of reasoning, however, is never clearly articulated. As a matter of fact, from the legal point of view, professional soldiers are to be considered "civil servants" or "public officials" (ambtenaar),68 which conscripts are not. Because the active service of conscripts was suspended in the early 1990s, we now, in practice, have a professional, volunteer military. The Constitution of the Netherlands allows restrictions on rights only on the basis of an Act of Parliament, and some restrictions must be explicit in an Act of Parliament itself. Since 1983, all rules concerning the legal position of civil servants must have their basis in an Act of Parliament (Article 109 of the Constitution). This reinforces the constitutional principle that restrictions on fundamental rights can be imposed only in or pursuant to an Act of Parliament. The legislative history of the fundamental rights provisions of the Constitution makes clear that restrictions can only be provided for in an Act of Par-

68

We should perhaps here render ambtenaar with the term "public official" rather than "civil servant" in order not to confuse civilian defence personnel with military personnel; and also because, in the Dutch legal system, professional military and reservists are called militair ambtenaar, which would otherwise have to be rendered as "military civil servant", which seems unidiomatic.

Military Law in the Netherlands

581

liament itself with regard to a number of fundamental rights, so that the power to restrict those rights cannot be delegated by Act of Parliament to some other institution or office with the power to set legally binding norms (Gesetzesvorbehalt). In general, the provision allows for delegation of restrictive powers when the language of the provision uses the words 'bij of krachtens wet' (by or pursuant to an Act of Parliament), 'regels' (regulations), or a form of the verb 'regelen' (to regulate). This is an artificial device, which cannot be adequately rendered in English translations of the Constitution's provisions. A further barrier to wide ranging restrictions of fundamental rights is the principle that in case of delegated restrictions, the basis for such restrictions in an Act of Parliament has to be deliberate, specific and clear.69 Thus, an "empty" or blanket delegation of the power to restrict the exercise of fundamental rights is considered to be unlawful. This can be illustrated in the military field with the following examples. Provisions in the Act on Military Disciplinary and Military Criminal Code (the Wet militair tuchtrecht, hereafter: WMT, and Wetboek Militair Strafrecht, hereafter: WMSr, respectively) make it an offence not to obey a service regulation (dienstvoorschrift) without further specification (Article 18 WMT and 135 et seq. WMSr). These provisions are in a sense "empty" or blanket provisions, which do not determine the power to make service regulations on specific issues. Therefore, they cannot provide a lawful basis for restricting fundamental rights by service regulation. Another example is Article 12 sub q of the Act on Military Public Servants, the Militaire Ambtenarenwet 1931 (hereafter: MAw 1931), which states that further rules can be made by or pursuant to an order in council concerning "other rights and duties". This provision is also non-specific and can therefore not be deemed to delegate the power to restrict the exercise of fundamental rights.70 This strict system of restrictions was considered to provide the best protection of fundamental rights. This system is fairly rigid. In their case law, courts sometimes seem not to have been very strict in determining whether the basis of a restriction in an Act of Parliament is specific enough, although there are numerous examples where courts have indeed applied this test strictly. The system of restrictions of the Constitution does not expressly contain any reference to the principle of proportionality, nor was this principle referred to at the time of the introduction of Chapter I into the Constitution in 1983.

69 70

Kamerstuk 13 872, No. 7, pp. 181 et seq.

It is more disputed whether Art. 12 sub g, which specifies dismissal (ontslag), as a subject matter by which further rules can be made by order in council, provides sufficient ground for restrictions by delegated legislation. See below, where we discuss social rights.

582

Leonard F. M. Besselink

This has led some legal commentators to suggest that, unlike the ECHR, the principle of proportionality does not apply to the restriction of constitutional fundamental rights. I, however, respectfully disagree with this position. First of all, it cannot be assumed that the framers of the Constitution intended to permit disproportional restrictions of rights. Secondly, the principle of proportionality is part of the general principles of proper administration which public authorities have to take into account in all their decisions, and which has been codified in the Algemene Wet Bestuursrecht and the General Administrative Law Act, and is used by courts as a standard against which decisions of public authorities are reviewed. Hence, it is this author's opinion that the principle of proportionality applies not only as a principle with regard to the rights protected under the ECHR, but also to the fundamental rights of the Constitution. The basis for legal restrictions on the rights of volunteers is to be found in the Militaire Ambtenarenwet (MAw) and Militair Ambtenarenreglement (Amar), because - as we already remarked - both professionals and reservists are "public officials", (militair ambtenaar), in the legal system of the Netherlands. A number of separate provisions in other legislation (e.g. concerning searches and vaccinations) are also relevant. The equivalent legislation dealing with conscripts is contained in the Kaderwet Dienstplicht, whereas the legal basis for restrictions imposed on the rights of civilian personnel is to be found in the Ambtenarenwet. These restrictions exist over and above the restrictions that are imposed by the generally applicable legislation, such as the Penal Code and other Acts of Parliament which provide a basis for restricting the exercise of fundamental rights. In the Netherlands we do not have a centralised or specialised court to deal with alleged infractions of constitutional fundamental rights or human rights provisions in treaties. Article 120 of the Constitution prohibits courts from reviewing the constitutionality of Acts of Parliament, but allows them to review the constitutionality of all other acts of public authority. It should be remarked that at present there is an amendment pending in the Lower House to abolish this prohibition with regard to review against the constitutional fundamental rights provisions. However, also under the present prohibition of reviewing the constitutionality of Acts of Parliament, any court can review the compatibility of any provision of national law (including Acts of Parliament and provisions of the Constitution) with self-executing treaty provisions - which are typically the classic human rights provisions in treaties like the ECHR and ICCPR. Thus, many courts deal with complaints regarding the infringement of fundamental rights of soldiers. However, there are specialised courts for different kinds of affairs concerning soldiers. The following is a brief sketch of the court system with regard to the various types and issues of military law.

Military Law in the Netherlands

583

Which court is competent to deal with complaints of unlawful interference with a fundamental right, depends on the context in which the complaint arises. Legal questions concerning the legal status of soldiers, which are based on the Militaire Ambtenarenwet (and - for conscripts - on Chapter II of the Kaderwet Dienstplicht), are matters of administrative law, which are dealt with in the first instance by the administrative chamber of the District Courts (arrondissementsrechtbank). Article 4 M Aw (and 31 KwDpl) provides that appeals against decisions based on the MAw (and KwDpl) belong in first instance to the exclusive jurisdiction of the District Court in The Hague. In principle the administrative chamber which deals with a case is an unus iudex, but he can refer the case to a multiple chamber composed of three judges. In military affairs the unus iudex is a civilian judge; a multiple chamber is composed of two civilians, one of which acts as president, and of a military member from the army, navy, or air force (depending on the service of which the appellant is a member). An appeal against the judgement in the first instance can be made to the Centrale Raad van Beroep, which is the court of highest instance for civil servants and in social security cases. This court is composed exclusively of civilians, also in military cases.71 These administrative law courts are of importance with regard to the protection of fundamental rights, because important possibilities of restricting the exercise of fundamental rights of soldiers are contained in the MAw (and KwDpl). Of course, in disciplinary and criminal cases, issues concerning fundamental rights can and do arise. Against a punishment imposed in disciplinary affairs, there first exists the possibility of complaint to the immediate superior of the commander who imposed the sanction. An appeal against his decision on the complaint lies with the arrondissementsrechtbank Arnhem (unless the appellant is in the territory under the command of the Commandant der Zeemacht in het Caraïbisch gebied (CZMCARIB) - in which case the Gerecht in eerste aanleg, Court of First Instance, of the Netherlands Antilles or Aruba is competent - or when the appellant is within the area in the competence of a mobile court).72 There is no

71

See G. L. Coolen, Militair en recht, (Deventer, 1996), pp. 75-94. There are also a limited number of cases with regard to conscripts concerning their (non-)admission to the armed forces in which appeal is only possible to the Afdeling bestuursrechtspraak Raad van State, the Administrative Law [Judicial] Division of the Council of State, see Arts. 10 (2), 11 (7) and 13 (2) KwDpl. 72

Art. 81 W M T in connection with Arts. 2, 10, and 17 WMSr. The territory of the CZMCARIB is determined geographically by Art. 17 (1) of the Uitvoeringsbesluit Militair Straf- en Tuchtrecht.

584

Leonard F. M. Besselink

further appeal or revision possible of the judgement of the Court, except for the possibility of revision in the interest of the law, cassatie in het belang der wet, which is at the initiative of the Procureur-Generaal at the Höge Raad (which cassation has no consequences for the case in which revision occurs).73 Criminal cases against soldiers are dealt with in first instance by the kantongerecht at Arnhem (cantonal court - for minor offences) or arrondissementsrechtbank at Arnhem (District Court - for all other offences), where military cases are concentrated. Appeals against judgements of the militaire kantonrechter can be made to the military chamber of the District Court Arnhem. Appeals against judgements in the first instance of the District Court can be lodged with the military chamber of the Gerechtshof Arnhem. In revision the Höge Raad deals with all military criminal cases. The militaire kantonrechter is an unus iudex, and also criminal cases before the arrondissementsrechtbank can, depending on the seriousness of the offence, be dealt with by an unus iudex (who is then called militaire politierechter). The unus is always a civilian judge. The military chamber of the District Court is composed of three members: two civilian judges and one military member. The military chamber of the Gerechtshof Arnhem is composed in the same manner. The Höge Raad has no military members. The territorial competence of the military courts of Arnhem is unrestricted, except when the suspect is in the territory of the CZMCARIB; then the Court of First Instance of the Netherlands Antilles or Aruba is competent. This means that both the militaire kantorechter and the military chamber of the District Court Arnhem can hold sessions abroad, as happens for the troops stationed in Germany. However, mobile courts can also be established in areas where a State of Emergency, uitzonderingstoestand, in the sense of Article 103 of the Constitution has been declared, or for trial outside the Netherlands.74 This is supposed to be done only under special circumstances. This presumably implies that those special circumstances may legitimate further restrictions on fundamental rights than would be the case otherwise. With regard to declared states of emergency, Article 103 (2) of the Constitution allows for further restrictions to a number of fundamental rights. To summarise it briefly, the main courts dealing with fundamental rights issues are, in the first instance either the District Court in The Hague (administrative chamber) or the courts in Arnhem (in criminal cases and on appeal in

73

Art. 100 WMT. This type of review has so far not occurred in disciplinary cases, but could very well be initiated in a case in which there is serious doubt as to the compatibility of a certain disciplinary measure with fundamental rights. 74

Art. 10WMS.

Military Law in the Netherlands

585

disciplinary cases), whereas the highest instances are the Centrale Raad van Beroep (in administrative cases) or the Höge Raad (in penal cases). b. Political Neutrality of Soldiers The principle of neutrality of the armed forces is not formulated as a binding legal rule in the legal system of the Netherlands. This is not to deny the existence of the principle of subjection of the armed forces to the democratic political order under the rule of law, which entails a degree of "neutrality". However, it is a principle only. This also means that it cannot be an independent ground for restricting the fundamental rights of members of the armed forces, because the Constitution does not allow for restricting these rights on the basis of unwritten principles, because in general a restriction of a constitutional right requires a basis in an Act of Parliament.75 Also the human rights treaties, which are directly effective in the Dutch legal order and have higher rank than the Constitution, do not explicitly provide grounds for restricting the exercise of human rights. However, the principle - assuming that is "provided by law" in the sense of the relevant treaty clauses - might play a role when the assessment of the legitimacy of an imposed restriction involves the balancing of interests and proportionality. Courts may be called upon to assess the proportionality of a restriction, particularly in the framework of judging on the basis of the European Convention on Human Rights in connection with the requirement that restrictions must be "necessary in a democratic society". In doing so, the principle of neutrality could play a role. With regard to soldiers abroad, there is a duty to neutrality in a different sense, viz. not to engage in political activity which does not regard the Kingdom of the Netherlands. An exception is made for the right to vote or to stand for election. Otherwise, engaging in political activity is made a disciplinary offence under Article 35 WMT, which thus gives effect to Article II NATO Status of Forces Agreement. The Reglement toepassing straf- en tuchtrecht ten aanzien van Nederlandse militairen, geplaatst buiten het Koninkrijk, (Regulation on the Application of Criminal and Disciplinary Law with Regard to Dutch Soldiers Stationed Outside the Kingdom), formulates this in Article 3 as a positive rule of conduct, by stating that the commander has to see to it that the laws of a foreign country are observed and that any political activity or other inter75

In the lead up to the Constitution of 1983, which included a new catalogue of fundamental rights in its first chapter, the doctrine that fundamental rights can be restricted by general legislation which does not purport to restrict such a right but incidentally may have this effect, was explicitly rejected, unless such a restriction can be based on the specific constitutional clauses concerning restrictions.

586

Leonard F. M. Besselink

ference with the internal affairs of the foreign state where a soldier is stationed is forbidden. The language of this provision is somewhat different, notably the exception for electoral rights is absent. This should be understood in the light of the purpose of the Reglement, which is to give an overview of the applicable law and an instruction as to how to act with respect to a whole range of situations which can arise abroad. It should therefore be construed in conformity with the provision of the WMT. Nevertheless, doubt can arise as to whether this overall prohibition of political activity abroad is a constitutional restriction of the freedom of assembly and demonstration. As we will see below, Article 9 (2) makes restrictions legitimate only for the protection of certain interests; these do not comprise the proper conduct of foreign relations or similar justifications of the prohibition of political activity abroad. Under the Dutch Constitution, this matter cannot be decided by courts, which are prohibited to judge the constitutionality of Acts of Parliament. However, even if the provision is in conflict with Article 9 Constitution, the Constitution allows for becoming a party to the treaties which lead to a departure from the Constitution, provided that they are approved with a two thirds majority in both Houses of Parliament (Article 91 (3) of the Constitution). We do not, however, need to see whether the NATO Status of Forces Agreement, which obliges the states party to this agreement to adopt this rule of political neutrality abroad, was approved with this majority, because the criteria of Article 9 (2) were only introduced in 1983. The Act of Parliament by which it was approved at the time remains valid under Article 140 of the Constitution.

c. Freedom of Association and Political Rights The freedom of association is guaranteed by Article 8 of the Constitution and Article 11 ECHR. Article 8: The right of association shall be recognised. This right may be restricted by Act of Parliament in the interest of public order. Under this provision, restrictions can only be imposed by an Act of Parliament, not by delegated legislation. The freedom of association is restricted by the provisions on 'functionality', as we shall see again when discussing freedom of expression: the soldier should refrain from the exercise of fundamental freedoms, among them the freedom of association if this were to interfere with "the proper performance of a public servant's duties and the proper functioning of the public service in so far as this relates to the performance of a public servant's duties".

Military Law in the Netherlands

587

However, Articles 12 a (2) M Aw and 27 KwDpl make an exception on this restriction for the freedom of association with regard to membership of registered political parties which participate in elections and with regard to trade unions.76 This means that with regard to registered political parties and trade unions there is a nearly unrestricted "negative" freedom of association, that is to say that officials cannot restrict the freedom to be a member of these associations by interfering with it. One should be aware that the formulation of the provision is such that membership of unregistered political parties can be restrained if it interferes with the proper functioning of the organisation or the relevant soldier. It must immediately be added that registration of political parties can hardly ever be refused on grounds of the type of policies proclaimed by a party. A party's registration has only been refused once because that party (an extremely right-wing party) had been dissolved by court order. The freedom of association in terms of positive claims to certain facilities ("positive" freedom), is not entirely unrestrained. Article 12c (3) MAw provides that in accordance with regulations to be established by or pursuant to an order in council, leave must be given for certain trade union activities unless the interest of the service requires otherwise. These regulations are established in the Amar. It provides that with a view to attending certain meetings of trade unions, special leave is awarded; this concerns work for representative trade unions of soldiers which are officially recognised and participate in the negotiations on the conditions of employment. Of course, soldiers have the right to vote and to stand for election. Special leave must be granted to soldiers who wish to vote and cannot do so without special leave (Article 85 Amar). Article 12c (1) and (2) MAw provides that if a soldier is elected or appointed to a public organ for which the activities are of such magnitude that they cannot be undertaken simultaneously with his function in the armed forces, he will be suspended from active service unless the interests of the service require otherwise; if the activities can be fulfilled while in active service, and no suspension is granted, the soldier will be given special leave to attend the meetings and sessions of the public organ involved and for participating in related activities unless the interest of the service requires otherwise. If a person has been appointed minister or state secretary, he is dismissed from the service.77

76

These provisions are substantively the same as the relevant provision of the Civil Servants Act, Ambtenarenwet, Art. 125 a (2). 77

Art. 40 MAw.

588

Leonard F. M. Besselink

d. Freedom of Expression Before presenting the protection of the freedom of expression of soldiers, it is necessary to sketch the scope of the freedom of expression in the Netherlands in general, and the possibilities of restricting its exercise. The main framework for the protection of the freedom of expression in the Netherlands is Article 7 of the Constitution 78 and Article 10 ECHR. Article 10 ECHR has a higher constitutional rank than Article 7 of the Constitution (see Articles 93 and 94 Constitution), but pursuant to the ECHR itself this is so only in so far as Article 10 ECHR provides better protection than the Constitution. It is therefore necessary to specify the respects in which the one prevails over the other. Article 7 of the Constitution provides better protection in as much as it prohibits all forms of censorship and hence the imposition of all forms of prior restraint, whereas certain forms of prior restraint are allowed under Article 10 ECHR, as is apparent from the case law of the ECHR. The case law of the Höge Raad der Nederlanden, the Netherlands Supreme Court, has made it clear that under Article 7 Constitution any restriction based on the content of an expression can only be contained in an Act of Parliament, whereas the ECHR also allows such restrictions to be made by any other measure "provided by law". It should be added that as regards the means of distributing certain expressions, especially printed matter in the sense of Article 7 (1) of the Constitution, rules of lower rank than an Act of Parliament can also restrict the distribution of expressions as long as such rules do not touch upon the content of the expression, and do not introduce a general prohibition of or general licence requirement for distributing printed materials. On the other hand, Article 10 (2) ECHR specifies the aims which can legitimise a restriction, whereas no specific aims can restrain the Legislature under Article 7 Constitution from restricting the freedom of expression. Moreover, Article 10 (2) ECHR makes it imperative that a restriction must be "necessary in a democratic society", which according to the ECHR means

78

Art. 7: "1. N o one shall require prior permission to publish thoughts or feelings through the press, without prejudice to the responsibility of every person under the law [wet\. 2. Rules concerning radio and television shall be laid down by Act of Parliament. There shall be no prior supervision of the content of a radio or television broadcast. 3. N o one shall be required to submit thoughts or opinions for prior approval in order to disseminate them by means other than those mentioned in the preceding paragraphs, without prejudice to the responsibility of every person under the law [wet]. The staging of performances open to persons younger than sixteen years of age may be regulated by Act of Parliament in order to protect good morals. 4. The preceding paragraphs do not apply to commercial advertising."

Military Law in the Netherlands

589

that there must be a "pressing social need", while a restrictive measure can only be necessary if it is proportional to the legitimate aim which the restriction intends to serve. Restrictions of the freedom of expression of soldiers must meet these several requirements. For volunteers special restrictions are to be found in the Militaire Ambtenarenwet, Article 12a and for conscripts in the Kaderwet Dienstplicht, Article 27. These provisions are substantively identical and also cover the freedom of association, assembly, and demonstration. Paragraphs 1 and 3 are of particular relevance with regard to the freedom of expression. Paragraph 1 formulates the criterion of the "proper performance of one's duties and the proper functioning of the public service in so far as this relates to the performance of one's duties", which we had occasion to mention above. The exercise of the freedom of expression, assembly, association, and demonstration can be restricted to the extent that this proper functioning and performance of duties is not "in all reasonableness guaranteed". This criterion is identical to the one in the legislation restricting the rights of civil servants in general (see Ambtenarenwet, Article 125 and following). This leaves a fairly large margin of freedom to the military to express criticism including criticism of major government policies, even those concerning the armed forces.79 Paragraph 3 imposes the duty of secrecy with regard to providing any information concerning the service to anyone who is not competent to receive it, in so far as this duty follows from the nature of the matter. Both the Wetboek van Militair Strafrecht, Military Criminal Code (WMSr) and the Wet militair tuchtrecht, Military Disciplinary Act, (WMT) create criminal and disciplinary offences with regard to certain forms of the exercise of the freedom of expression, for all members of the armed forces in active service (in so far as they act within the ambit of these laws). The WMT adds in Article 6 a sanction on acting in conflict with the duty contained in Article 12a (3) MAw and 27 (3) KwDpl. It provides that anyone who passes on information concerning the service to someone who is not competent to receive it, while from the nature of the matter it follows that the information is secret, acts contrary to military discipline.

79

For an analysis of the relevant criteria in the light of publications of high military officers, including the Commander-in-Chief of the Army strongly criticising government policy concerning over the armed forces, see J. P. M. Schwillens, Vrijheid van meningsuiting van de (militaire) ambtenaar, (1995) MRT, pp. 93-103.

590

Leonard F. M. Besselink

This provision is supplementary to the offences formulated in the Common Criminal Code concerning state secrets and official secrets.80 To be more precise: they are supplementary in the sense that they concern other secrets than those intended in the Criminal Code. This is so, because in the Netherlands, the disciplinary offences of the WMT are conceived of as distinct and separate from criminal offences (both common and military). The Military Criminal Code (WMSr) formulated a special offence regarding secrets until 1991. This was judged superfluous alongside the existing offences concerning state secrets contained in the Criminal Code, and it has therefore been removed from the Military Criminal Code. Another restriction of the freedom of expression is to be found in Article 20 WMT, which makes it a disciplinary offence publicly or in the presence of another soldier to revile (abuse, NL: uitschelden) or mock him. Also it is a disciplinary offence to incite others (orally or in writing) to commit a disciplinary offence in the sense of the WMT, or to distribute writings which do so. The Military Criminal Code makes it a criminal offence to incite a soldier orally or in writing to commit any offence in the sense of the WMSr. It is also an offence to distribute, exhibit, or promote such writings, or possess them for purposes of distribution.

80

Arts. 98-98 c and 272, Wetboek van Strafrecht (Sr). The Explanatory Memorandum with regard to Art. 6 WMT has suggested that it covers not only those matters which are covered by the WSr, but also matters not covered by a service regulation, dienstvoorschrift. Kamerstuk 16813, No. 5, p. 6. This seems to suggest that a service regulation can create a secrecyoffence; the offence then exists in the intentional or culpable failure to carry out a service regulation (Arts. 136 and 137 WMSr). However, in my opinion this would be contrary to Art. 7 Constitution, because in this manner a regulation of lower rank than an Act of Parliament would touch on the content of the information not to be divulged. Perhaps one could argue that the WMT imposes the duty to obey service regulations so that by implication there is a duty to keep certain information determined by service regulation secret, which duty flows from the WMT (an Act of Parliament) rather than from the service regulation. This type of reasoning was allowed in the Supreme Court case Tilburg (HR 28 November 1950, NJ 1951, 137) with regard to emergency regulations of burgomasters. However, in this case the Höge Raad considered that the Criminal Code allowed this as a "very temporary interruption of the exercise of the fundamental right" under emergency situations. This can hardly be said of secrecy delicts created by service regulations. Moreover, it is doubtful whether this still reflects the present law on freedom of expression. I may add that, assuming that the opinion on the incompatibility of secrecy offences created by service regulations is correct, this does not stand in the way of service regulations or other decisions which make a certain concrete piece of information secret by way of concrete application of the norm, rather than the creation of an offence.

Military Law in the Netherlands

591

For the prohibition of political activity when stationed abroad - which implies an important restriction of the freedom of expression - see above. Whereas the previously mentioned provisions mostly relate to the content of the expressions, there are also provisions in the WMT which relate to the distribution of expressions in Articles 31 and 32. The first regards the contravention of a service regulation (dienstvoorschrift) which prohibits the distribution of printed matter. Such regulations must serve the interests of traffic, the prevention of obstruction of the service, or the protection of state property or the property of others. The second regards the contravention of a prohibition issued by service regulation to distribute expressions by other means than printed matter. In this case such prohibitions must serve the interests of traffic, or the prevention or repression of disorder or disturbances (verstoringen) of the regular order of the service. e. Freedom of Demonstration and Assembly The freedom of assembly and demonstration is formulated in Article 9 of the Constitution: 1. The right of assembly and demonstration shall be recognised, without prejudice to the responsibility of everyone under the law [wet], 2. Rules to protect health, in the interest of the service, and to combat or prevent disorders may be laid down by Act of Parliament. The legislative history of this provision makes it clear that the words "responsibility under the law" in the first paragraph refer to restrictions contained in an Act of Parliament, whereas the word "rules" in the second paragraph also comprises delegated legislation. Within the ECHR, Article 11 protects the right to assembly, which encompasses the right to demonstrate:81 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful

81

E.g. ECHR, Plattform Series A No. 139.

"Ärzte für das lieben" v. Austria, Judgement of 21 June 1991,

592

Leonard F. M. Besselink

restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State. Of particular relevance is the last sentence of paragraph 2, which makes it clear that "lawful restrictions" can be imposed with regard to (amongst others) members of the armed forces. To my knowledge the exact scope of this clause is as yet unclear with regard to the question of which extra restrictions it allows for. In the Vogt case, the ECHR on the one hand conceded that this clause allows for "special restrictions",82 yet, on the other hand, it quite clearly implied that the requirement of proportionality to the legitimate aim under the standard clause, also applies to restrictions under the special final clause for members of the armed forces, the police, and civil servants.83 This, however, raises the question of what "special restrictions", other than the usual ones, could be allowed with regard to members of the armed forces. For volunteers, special restrictions are to be found in the Militaire Ambtenarenwet (Article 12 a) and for conscripts in the Kaderwet Dienstplicht (Article 27) which formulates the criterion of the proper functioning of the service and the soldier, which we mentioned above. Article 33 (1) WMT makes it a disciplinary offence to organise or participate in demonstrations on military premises, if no permission has been sought from the competent authorities, or has been refused for reasons of traffic, or of reasonable fear of disturbances of public order, or of the regular order of the service. The second paragraph prohibits participation in uniform in a demonstration or assembly outside military premises, unless it exclusively concerns the working conditions for soldiers and the demonstration or assembly takes place in the country where the soldier has been appointed or the conscript has been called to active service - as a result, participation in demonstrations abroad is prohibited. Article 34 WMT makes it a disciplinary offence to meet in assemblies on military premises for which permission has been refused in the interest of traffic or because disorders or disturbances of the regular order of the service could reasonably be expected. The requirement of prior permission does not exist under general constitutional law; the Act on Public Demonstrations, Wet openbare manifestaties, creates only the possibility for local councils to require prior notification, but not 82 83

ECHR, Vogt v. Germany, Judgement of 2 September 1995, Series A No. 43.

Idem at No. 68: "However, even if teachers are to be regarded as being part of the "administration of the State" for the purposes of Art. 11 (2) - a question which the Court does not consider it necessary to determine in the case at hand - Mrs Vogt's dismissal was, for the reasons previously given in relation to Art. 10 (see paragraphs 51 to 60 above), disproportionate to the legitimate aim pursued."

Military Law in the Netherlands

593

prior permission. Some authors have doubted whether the Constitution allows the general requirement of prior permission. This is due to the words "without prejudice to the responsibility of everyone under the law [wet]" in Article 9 (1) of the Constitution. In the context of Article 7 (1) of the Constitution, which concerns the freedom of expression and which uses these same words, they have to be understood as creating ex post facto liability. However, in Article 7 there is an explicit prohibition of prior permission, unlike in Article 9. Moreover, prior permission for demonstrations and assemblies of soldiers is not general, but only regards demonstrations and assemblies on military premises.84 There is, however, a possible problem in the wording of Article 9 (2) of the Constitution in relation to the implication in Articles 33 and 34 of the WMT, that not only traffic requirements, but also the fear of disturbance of the regular order of the service (verstoring van het ordelijk verloop van de dienst) - separate from the fear of disorder (ongeregeldheden) - may be a ground for prohibiting a demonstration or assembly. This may be at variance with the grounds mentioned in Article 9 (2) of the Constitution, i.e. health, traffic interests, and the interest "to combat or prevent disorders", which alone can justify a restriction of the freedom of demonstration and assembly. It is unclear whether the constitutional category of "the combat or prevention of disorder (wanordelijkhederi)" also comprises the internal disturbance of the normal order in a public service. I should hasten to add, that this matter is somewhat academic as long as Article 120 Constitution prohibits courts to judge the constitutionality of Acts of Parliament. f

Freedom of Religion

The general legal framework is provided by Article 6 Constitution: 1. Everyone shall have the right to profess freely his religion or belief, either individually or in community with others, without prejudice to his responsibility under the law [wet]. 2. Rules concerning the exercise of this right other than in buildings and enclosed places may be laid down by Act of Parliament for the protection of health, in the interest of traffic, and to combat or prevent disorder. and Article 9 ECHR:

84

Also with regard to Art. 11 of the ECHR, the requirement of prior permission for demonstrations or assemblies of soldiers does not constitute an unjustified infringement, assuming that the special nature of the armed forces makes it not disproportional to have such a general requirement.

594

Leonard F. M. Besselink

1. Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice, and observance. 2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health, or morals, or for the protection of the rights and freedoms of others. These provisions may entail positive obligations for the state in its treatment of soldiers. The case law concerning the freedom of religion of military and other public officials has shown that the Centrale Raad van Beroep is, on the whole, reluctant to consider the freedom of religion (and other fundamental rights) a claim right, nor does it very easily derive positive obligations for the government from these rights.85 Thus, one may say that the constitutional and treaty provisions create no immediate right to certain days off. However, Articles 12b M Aw and 28 KwDpl provide that a soldier cannot be forced to do service on feast days and resting days which he observes on grounds of religion or belief, unless the needs of the service makes this unavoidable. This is further elaborated in Amar Article 54j for soldiers who, on grounds of religion or belief, have their weekly resting day on another day than Sunday; they must request in writing for registration of the relevant day, which will then be considered for that soldier as equivalent to a Sunday. The commander who determines for every soldier his working hours and resting hours pursuant to Articles 54 b et seqq. Amar will have to take this right to have religious resting days respected into account in other respects as well, particularly with regard to religious feast days.86 With respect to creating facilities for soldiers, one might perhaps expect a distinction between conscripts and volunteers. Conscripts are part of the armed forces because they are so compelled, whereas volunteers have freely assented to the job in the awareness of the nature of the institution. Hence, one might 85

A clear exception is CRvB 25 October 1990, (1990) TAR, p. 243, in which the Centrale Raad judged that the facilities for Muslim, Jewish, and Hindu soldiers (a service regulation of the commander of the army) did not provide for facilities for complying with the Ramadan obligations. Basing itself on Art. 6 of the Constitution, the Centrale Raad concluded that facilities should be created, particularly with regard to working hours and the possibilities for occasional exemption of service duties. 86

Arrondissementsrechtbank The Hague, 22 December 1997, (1998) TAR, p. 39: A grant to a Jewish musician in the band of the air force, who converted to Orthodox Judaism, for leave on Jewish feastdays and resting days led to an absence of at least 40% of the time; as a consequence, he was given a 20% unpaid leave. After careful scrutiny, this was upheld by the District Court as unavoidable for reasons of service.

Military Law in the Netherlands

595

expect the state to be more readily prepared to create facilities in order to be able to enjoy one's fundamental rights, if people have been brought involuntarily into a situation in which the enjoyment of fundamental rights has been made more difficult, such as is the case with conscripts. With those who have freely chosen to be placed in such a situation this might perhaps be different. This way of reasoning is fraught with difficulties and raises such questions as to whether one can voluntarily forfeit fundamental rights, and if so, whether this should affect positive obligations for the government. However this may be, there is a decision of the Centrale Raad which disproves the legal validity of this type of distinction between the fundamental rights position of conscripts and of volunteers: the freedom of religion does not necessitate facilitation, but also there should be equality in this respect between conscripts and volunteers. The case involved a Jewish navy corporal who for religious reasons wished to eat and drink kosher food only, which was not served. He claimed financial compensation for the cost of preparing his own kosher meals. The Centrale Raad van Beroep rejected the view of the officer that this claim could be derived from the right to freedom of religion (however, it did in the end grant the claim on grounds of equality: for conscripts there was a special allowance for those who have to prepare their own meals in order to observe religious dietary rules, but not for professionals).87 In some countries the issue has arisen of the involuntary attendance of religious ceremonies. No case law on this issue exists in the Netherlands. It is hard to say what the courts would decide if a soldier had received an order to attend a religious ceremony against which he might have some objection, but which order involves an interest of the service (this is a requirement for an order to be lawful, see below). The question would then be whether there is an interference with the religious freedom of the soldier and if so, whether the justification for the order would fit in with the criteria for restrictions in Article 6 Constitution and 9 ECHR. The answer to both questions presumably depends on the nature of both the ceremony and military presence at the ceremony, and also on the circumstances (is it a state funeral or official ceremony at the burial of a soldier who was killed in action, or is it merely intended as moral education for an individual, etc.). As a positive aspect of the freedom of religion, in the sense that the government felt necessitated actively to create facilities, is the presence of geestelijk verzorgers, spiritual counsels, in the armed forces. They have been appointed as civilians (although some rules and regulations which apply to soldiers also apply to them, and they may hold military ranks). They are Roman Catholic

87

Centrale Raad van Beroep, 14 March 1991, (1991) TAR, p. 105.

596

Leonard F. M. Besselink

chaplains (aalmoezeniers), Protestant ministers (predikanten), rabbis, and humanist counsellors (humanistisch raadsliederi). The appointment of Hindu spiritual advisors is in preparation. Soldiers also have access to Islamic spiritual advisors (imams), but these have not been officially appointed in a public function to the armed forces. Various provisions in the Amar allow soldiers access to spiritual advisors and to facilities to attend religious services, ceremonies, and retreats (see for special leave on these occasions Article 81 (1) sub g, i, j, k, and o). g. Privacy and Physical Integrity (Search, Privacy, Hairstyle, Beards, Ornaments, and Piercings) The framework concerning privacy and physical integrity is provided by Articles 10 (1) and 11 Constitution [and Article 8 ECHR], Article 10 Everyone shall have the right to respect for his privacy, without prejudice to restrictions laid down by or pursuant to an Act of Parliament. Article 11 Everyone shall have the right to inviolability of his physical body, without prejudice to restrictions laid down by or pursuant to an Act of Parliament. Article 40 WMT provides that it is contrary to military discipline not to inspect the room which is placed at the disposal for personal use of a soldier or of another person working for the armed forces. The Articles 12d M Aw and 30 KwDpl formulate a duty to tolerate searches to one's body, clothes, and goods on military premises or in buildings, vessels, or aircraft used by the armed forces, or where one stays, or which one uses in carrying out tasks in an international context. There has been controversy over certain other privacy related issues, particularly the issue of hairstyles and growing beards, since the early 1970's. At present the issue of earrings and other piercings has led to some publicity. There is a Regeling haardracht 1971, issued by the Minister of Defence,88 which proclaims the main principle of free hairstyle except when safety requires differently. Also, Commanders-in-Chief can make different regulations if necessary under special circumstances or for special operations. In case law the Arrondissementsrechtbank Arnhem has judged that this Regeling poses no unlawful infringement on the right to privacy and physical integrity, nor does a service regulation to the effect that at the start of service 88

Ministerial Regulation, 8 July 1971, No. 232.131/10H.

Military Law in the Netherlands

597

all soldiers must appear washed and shaven.89 It is not clear whether the court considers these rules and regulations to be outside the scope of these fundamental rights, or whether it considers them lawfully restricted. If the latter, then it is not immediately clear what basis the rules concerning hairstyles have in an Act of Parliament. This matter has not been resolved by recent case law concerning an air force sergeant on an international mission to Villafranca. The principle of free hairstyle does not apply when a soldier is sent abroad. There the hair must be short and no ornaments are allowed.90 This was, in this particular case, based on a regulation issued by the Commander Tactical Air Force. The sergeant of the air force, who was acting as a guard, was withdrawn from his UN/NATO mission in Villafranca because he refused to have his hair cut short. The District Court of The Hague upheld the exception to the general rules on hairstyle. It upheld the justification on the grounds that members of the armed forces wearing long hair is not generally accepted abroad and among other armed forces with which the air force cooperated; it may affect the image of professionalism and hence seriously affect the power and effectiveness of the armed forces. Hence it was rightly held necessary to make an exception to the general rules as specified by the regulation on hairstyle.91 Also the court held that there was no infringement on his right to privacy and physical integrity, because he had not been forced to cut his hair. The consequences of not doing so, are justified. Nor did the court consider it discrimination that no exception was made for women, who abroad only have to adapt their hairstyle to prevailing hygienic circumstances, because abroad and among other armed forces it is not abnormal that women wear long hair. An appeal was lodged at the Centrale Raad van Beroep against this judgement. The Raad decided in favour of the sergeant, but on different grounds than fundamental rights. It found that the regulation was ultra vires, because only the Commanders-in-Chief are competent to issue regulations which diverge from the ministerial regulation, the Regeling Haardracht.92 Moreover, it judged 89

Rb Arnhem, 26 November 1993, (1994) MRT, p. 58: "[...] the rule contained in this [company] order [a service regulation in the sense of Art. 18 WMT] to appear washed and shaven at the beginning of the service, cannot be considered an infringement of the rights of Arts. 10 and 11 of the Constitution to respect of one's privacy and physical integrity. The same applies to the restrictions of the Regeling Haardracht 1971 on the principle of free hairstyle for soldiers, among which is the obligatory prior notification of the intention to grow a beard." 90

Handelingen Tweede Kamer, Aanhangsel No. 1181 and Handelingen Tweede Kamer 1996, Aanhangsel 1594.

91 92

Rb Den Haag, 6 May 1998, (1998) TAR, p. 126.

This presumably also implies that the judgement by the military chamber of the District Court at Arnhem, 11 July 1995, (1996) MRT, pp. 113-115, confirming in appeal

598

Leonard F. M. Besselink

that the general prohibition of long hair was not justified under the terms of the ministerial regulation, because no good reasons had been presented which had made it plausible that the appellant's special guard duties were of such a special nature as to make it necessary to wear short hair, nor had it more generally been made plausible that the strength or the professional image has been affected by the appellant's long hair, while, in general, the wearing of long hair over the past decades in which the armed forces have cooperated in international obligations, does not appear to have had any negative effect on the professional image of the armed forces. Interesting as this approach is, from the perspective of the constitutional protection of fundamental rights it has not solved the problem of the lack of a demonstrable and specific basis in an Act of Parliament for curtailing the right to privacy and physical integrity of soldiers. There is some relevant legislation, but this only refers to the uniform and ways of being dressed. The most relevant is Article 38 of the WMT, which states that the soldier in uniform who is unnecessarily untidily dressed (nodeloos slordig gekleed), acts contrary to military discipline. If hairstyle were covered by the expression 'being dressed', which in ordinary Dutch is not the case, there would be no problem. In fact, in Dutch 'dressing' (kleden, kleding) is putting something on and taking it off, whereas hairstyle is a matter of physical appearance (uiterlijk). However, in a recent answer to parliamentary questions,93 the State Secretary for Defence has suggested that the legal basis is provided by Article 134 Amar. But this only concerns the wearing of the uniform and would therefore seem to be an even weaker basis. Again, the Amar is an order in council which, in order to restrict fundamental rights, must have a clear and specific basis in an Act of Parliament. The Act of Parliament which is at the basis of this order in council is the M Aw, which in Article 12 under q delegates the power to provide for further regulation of 'other rights and duties' by or pursuant to an order in council. This can hardly be called a specific basis for restricting constitutional rights. In my opinion, the only basis for restrictions with regard to hairstyle and the growing of a beard could be the WMT with the help of a broad interpretation of the verb 'to dress'. However, this over-stretches the meaning of the word.

a disciplinary measure against a soldier in Potocari who failed to cut his hair on the basis of rules set by the commander of Dutch troops in former Yugoslavia, was presumably incorrect. The order based on these rules was unlawful because the rules were not binding, as they were issued ultra vires by a commander who was not competent to do so. 93 Handelingen Tweede Kamer 2000-2001, Aanhangsel, No. 1181, written answer of 14 May 2001.

Military Law in the Netherlands

599

The issue of wearing ornaments, such as earrings, jewellery, or piercings has lead to some legal controversy in recent years. At issue was in particular the fact that it has been allowed for women to wear (modest) earrings and jewellery, but without exception it has been forbidden for men. This has led to two judgements of the Commissie gelijke behandeling, Commission for Equal Treatment. First, it judged (on complaint) that this is (unlawful) direct discrimination,94 and (at the request of the Minister of Defence), it has recently judged new regulations on the issue unlawful for the same reason.95 On the basis of the first mentioned judgement, the District Court The Hague has considered the regulations on dress codes non-binding.96 The Secretary of State for Defence has announced that an amendment to Article 134 Amar is being prepared which will add a general prohibition of visibly wearing (non-prescribed) ornaments and jewellery when a soldier is wearing a uniform. This will solve the problem of discrimination, but not that of the legal basis for restricting the right to privacy and physical integrity (assuming these are indeed at stake). Another issue regarding physical integrity and freedom of religion and conscience is that of immunisation against infectious diseases. The Wet immunisatie militairen provides the basis for vaccination of all soldiers. Under Article 5 of this Act, those who have conscientious objections based on religion, belief, or moral conviction can apply for an exemption with the Minister, who will decide after hearing the advice of a special Commission who investigates the seriousness and grounds of the objection. An exemption can also be granted for medical reasons (Article 6). h. Freedom of Movement, the Right to Leave the Country Article 2 (4) of the Constitution grants the right to leave the country: Everyone shall have the right to leave the country, except in the cases laid down by Act of Parliament. The legislative history of this provision makes it clear that restrictions of this right can only be contained in an Act of Parliament itself, which cannot delegate the power to restrict the exercise of the right. For soldiers a restriction can be found in the MAw and the KwDpl. It provides that, except with the permission of the Minister of Defence (or a person determined by him) or at his order, it is forbidden to travel to or stay in a country: 94

CGB, oordeel 1998-65.

95

CGB, oordeel 2000-76.

96

Rechtbank Den Haag 6 July 1999, AB 2000, 360; also published in (1999) MRT, pp. 299-304.

600

Leonard F. M. Besselink

a) determined by Royal Decree in which the presence of a soldier can pose a special risk for the security or other important interests of the Kingdom or its allies; b) a country or part of it where an actual armed conflict exists. In the academic literature, the question has been raised whether the referral to a Royal Decree is constitutional, because restrictions should be made by Act of Parliament, in this case the MAw and KwDpl. The answer depends on whether one sees the referral to a Royal Decree as a form of delegation of legislative power, or merely as a form of practical application of a rule which is already normatively complete in the provisions of the relevant Acts of Parliament. In favour of the latter view, one can say that all the relevant criteria can be found in the Act of Parliament. In favour of the former view, one can say that it is not always evident whether the criteria have been met. In fact, we see that the last published Royal Decree specifying the 'risk countries mentions: Libya, Syria, Iraq, Iran, North Korea, Ukraine, Russia, Sudan, the Federal Republic of Yugoslavia. For some of these countries it is more obvious why they are on the list than for others; and yet again some other good candidates are not on the list.97 In this respect, the relevant Acts of Parliament seem to leave a fair amount of discretion to the Government to determine which countries pose a risk and which do not. For civilians, the Burgerlijk Ambtenarenreglement Defensie does not restrict the right to leave the country except for those who have access to secret or very secret information (Article 91a). These persons have the duty of informing the ministry in advance of the fact that they will be visiting a country posing the risk mentioned above. All civilian personnel who have been involved in an incident in one of these countries which can be relevant to the security or important state interests of our country, are under the obligation to inform the Military Intelligence Office. i. Equal Treatment and Non-Discrimination; Women; Homosexuals As regards equal treatment in general, the legal framework is provided by Article 1 of the Constitution: All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race, sex, or on any other grounds whatsoever shall not be permitted. The general norm of Article 1 of the Constitution has been further elaborated in an Act on Equal Treatment of Men and Women, Wet Gelijke Behandeling,

97

Besluit aanwijzing risicolanden defensiepersoneel, Staatsblad 1997, 449.

Military Law in the Netherlands

601

(which regards working and employment conditions) and in a General Act on Equal Treatment, Algemene Wet gelijke behandeling. Also Article 26 ICCPR contains a general prohibition of discrimination and has direct effect in the Dutch legal order with priority over all national provisions. The Netherlands has signed but not yet ratified Protocol 12 to the ECHR, containing a general prohibition on discrimination. Finally, the provisions on equal pay between men and women contained in various treaties are of some relevance, but these are not always directly effective in the sense of Articles 93 and 94 of the Constitution. It concerns Article 142 (former 119) EC and related provisions in the secondary EC law; Article 7 sub a (i) ICESCR and Article 4 sub 3 ESC (the Netherlands is not a party to the revised ESC). Finally, the principle of equality is accepted and applied in practice and in case law as a general principle of law and as a general principle of proper administration. The armed forces are open to both men and women. Only two exceptions are made: women cannot be members of a submarine crew, nor can they be members of the Korps Mariniers, the Royal Netherlands Marine Corps. The Commissie Gelijke Behandeling has upheld this exception as being neither in conflict with national legislation on equality, nor with the case law of the European Court of Justice, particularly in case C-273/97, Sirdar The official aim is to raise the percentage of women in the armed forces to 12%. The statistics show that women as a percentage of the total forces are strongly under-represented, and this goal will be difficult to achieve." Percentage of Women in the Armed Forces

1992 1995 1998 1999 2000

Koninklijke marine (navy)

Koninklijke landmacht (army)

6,4% 7,8% 9,1% 9,2% 9,2%

4,7% 5,2% 6,5% 6,9% 7,2%

Koninklijke luchtmacht (air force)

Koninklijke marechaussee (military constabulary)

Total

5,2% 5,9% 7,3% 7,7% 8,0%

4,2%

6,4%

-

-

6,8% 7,5% 8%

7,3% 8,5% 8,7%

98

CGB, ordeel 2000-38 of 30 June 2000.

99

, (19/9/2002).

602

Leonard F. M. Besselink

For women a number of special provisions are made in the sphere of working hours in connections with pregnancy, delivery, and breast feeding.100 As to homosexuals the official policy has been that sexual orientation should not be an obstacle to the full participation of homosexuals in the armed forces. The emancipation and integration of homosexuals has been an official policy aim since the early 1990s.101 In 1998-1999, an independent committee of experts reviewed the effectiveness of this policy and presented a report to the Minister of Defence. It shows that among the members of the armed forces, 10% of personnel consider social contacts in the presence of homosexuals to be unpleasant. The Minister of Defence has announced a further intensification of the policy measures, aimed particularly at information, education, and support. Special contact persons have been designated as confidants in all parts of the armed forces; there is also a special counsellor at the Inspectorate General; and there has been a Stichting Homoseksualiteit en Krijgsmacht, Foundation on Homosexuality and the Armed Forces, which is financially and organisationally supported by the Ministry of Defence. The foundation promotes the interests of homosexual members of the armed forces. It supports them and provides information and counselling. A special leaflet has been issued by the Ministry of Defence on various aspects of homosexuality in the armed forces. Also, as regards participation in international missions and units, the policy is that sexual orientation is no obstacle to being sent abroad. With regard to being stationed abroad other than for peace operations, previous consultation with the candidate takes place. In case the homosexual person involved seriously expects insurmountable problems, the intended stationing abroad can be changed to an equivalent alternative. According to the leaflet of the Ministry of Defence, this does not have any consequences for the career development of the person involved. With regard to deployment for peace operations, the regulations are stricter. This can happen involuntarily. The person involved has the right to be informed about the situation with regard to homosexuality in the country where he will be sent to. In case law, there have been repeated references to legal norms on discrimination and equal treatment in cases concerning members of the armed forces.102 We will mention a few of them. 100

Amar Paragraph 11, Arts. 59 f-I, Stb. 2001, 348, p. 16 et seq.

101

Letter of the Minister of Defence to Parliament of 28 May 1991, Kamerstuk 21 800 X, No. 47 and 4 May 1993, Kamerstuk 22 800 X, No. 51. 102

Among those not further elaborated here is CrvB 9 September 1993, (1994) MRT, pp. 172-174, in which different rules for compensation for travel in the various branches of the armed forces were deemed not to be in contravention of the general legal principle of equality; HR 18 April 1995, (1995) MRT, pp. 297 et seqq., reviewing whether treatment of other conscientious objectors not enjoying the same treatment as Jehovah's witnesses was in conflict with Art. 26 ICCPR.

Military Law in the Netherlands

603

In a case on the inequality between pay for conscripts and professionals, the Centrale Raad van Beroep, decided the claim on the basis of Article 7 ICESCR stating that in this context it cannot have direct effect. 103 We saw above that in the case of the financial compensation for kosher food, the Centrale Raad van Beroep had made an explicit reference that in this respect conscripts and professionals were equal cases which on the basis of Article 1 of the Constitution needed to be treated equally.104 The Commissie Gelijke behandeling has dealt since 1997 with 10 cases in which the Ministry of Defence was involved. We mentioned some cases already. Most of the others concerned civilians, such as a case on discrimination on the basis of part-time work and (indirectly) on the basis of sex. In this case also Article 125 g of the Ambtenarenwet played a role, which forbids discrimination on the basis of part-time or full-time appointment. A similar provision is lacking in all (other) regulations for defence personnel. The Commission found in favor of the woman. 105 Another case concerned an alleged discrimination on the basis of marital status existing in the fact that soldiers with family members did not need to pay a contribution towards meals served in the mess after service hours, whereas other soldiers did need to do so. The Commission found that there was indirect discrimination on the basis of marital status.106 j.

Right to Strike

In the Netherlands there is no national legislation whatsoever on the right to strike. The right to strike has been recognised in the case law of the Höge Raad as part of the rights deriving from Article 6 (4) of the European Social Charter, which has been considered self-executing and directly effective. The restrictions on this right are in principle contained in Article 31 of the ESC. This requires that restrictions are provided by law and are necessary in a democratic society with a view to the protection of public order, national security, public health, and morals. This also provides the legal framework for the right to collective action and the right to strike of public officials. The Netherlands has made a declaration on ratification (in 1980) that it considers itself bound by Article 6 (4) ESC except for civil servants (ambtenaren, which includes professional soldiers). This was not intended to uphold a pro-

103

Centrale Raad van Beroep, 10 January 1991, (1991) TAR, p. 69.

104

Centrale Raad van Beroep, 14 March 1991, (1991) TAR, p. 105.

105

CGB, oordeel 2000-93, 22 December 2000.

106

CGB, oordeel 1997-06, 7 January 1997.

604

Leonard F. M. Besselink

hibition for public officials, but was rather intended as a temporary measure in order to be able to formulate legislation defining the limits and restrictions on the right to strike for public officials (civil servants and soldiers). In practice, the right to strike has also been acknowledged for civil servants of various types, including the police. There has been a long-standing effort to codify the right to strike, but the case law has been satisfactorily developed to a level where the Legislature considers it difficult to come up with a better form of protection. Although the intention to draft legislation with regard to restricting the right to strike of defence personnel still seems to exist, so far none has come about.107 The case law of the Höge Raad has developed the restrictions (of Article 31 of the ESC) to the right to strike on the basis of actions grounded on Article 6: 162 Civil Code on unlawful acts (tort). The case law on the right to strike of civil servants has formulated as general principles determining the lawfulness of the action, that collective action must be a last resort (ultimum remedium), it must concern working conditions or pay and similar interests; the lawfulness depends also on factors such as timely announcement, nature and manner of carrying out the collective actions, the proportionality as to the damage caused to the public administration, to the public, and to the general interest, etc. With respect to police, fire brigades, and soldiers it has often been said that the right to collective action, including the right to strike, can be totally withheld under Article 31 ESC. Various legislative proposals (none of which have materialised into positive law) contain general restrictions for these categories. However, in the absence of actual legislation, courts have allowed collective action by the police. This might also be the case for soldiers. This author would carefully suggest that, depending on the circumstances, it is lawful for soldiers to strike, but this is not entirely certain.

k. Child Soldiers Young men and women can apply for a military function as of the age of 17. Seventeen year olds have always been able to be soldiers. In this respect there has arisen a problem over the Convention of the Rights of the Child, to which the Netherlands has been a party since 1995, and more particularly the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, to which the Netherlands has been a party since September 2000. Article 38 of the Convention allows the enrolment 107 On the various proposals J. Hellendoorn, De militair en het recht op collectieve acties, (1992) MRT, pp. 238-245; A.J.M. van Meer, Collectief actierecht militairen, (1998) MRT, pp. 153-168.

Military Law in the Netherlands

605

of children between 15 and 18 years old, but clearly favours the approach that soldiers should be older. The optional protocol prohibits the exposure of soldiers younger than 18 years to hostilities. This led to some concern in Parliament over the Dutch practice. In the end, the Minister of Defence opted for a system in which 17-year-olds can become aspirant-militair. They receive training in the use of firearms, but are not allowed to carry these on duty. They cannot participate in operations. At least until the moment they reach the age of 18 years, they have the choice to leave the service.108

2. Legal Obligations of Soldiers There is no special law summing up the rights and duties of soldiers like the Soldatengesetz in Germany. The rights and duties of the soldier follow from the whole complex of legislation concerning the position of the armed forces and its members, including the Militaire Ambtenarenwet and Militair Ambtenarenreglement, the Kaderwet Dienstplicht, the Wetboek van Militair Strafrecht, Wet Militaire Strafrechtspleging, and Wet Militair Tuchtrecht and related instruments, and various administrative regulations touching on working conditions, etc. As we have seen above, some rights and duties are formulated explicitly in the Militaire Ambtenarenwet and Kaderwet Dienstplicht and statutory instruments based thereupon. Nevertheless, many specifically military rights and duties of soldiers derive from the Wetboek van Militair Strafrecht, and more specifically the Wet Militair Tuchtrecht. From the norms which formulate offences against military discipline, the substantive disciplinary rules must be deduced. This indirect manner of defining the rules of military discipline is conscious, but is awkward both in law and in practice. Thus the WMT provides in Article 2: 'The punishments provided by this act, apply to the soldier (militair) who violates the rules of conduct (gedragsregels) of this act.'109 Article 3 determines when the 'rules of conduct', gedragsregels, of this Act apply,110 and Chapter II of the Act bears the heading Gedragsregels, Rules of

108

See letter of the Minister of Defence of 1 March 2002, Kamerstukken, Tweede Kamer 26 900, No. 48. 109 Art. 2: "De straffen, in deze wet voorzien, zijn van toepassing op de militair die een gedragsregel van deze wet schendt." 110 Basically the time in which a soldier is or should be on duty, when he is in a "military place", or when he is wearing the uniform.

606

Leonard F. M. Besselink

Conduct. However, neither this chapter nor any other form of legislation formulates rules of conduct. In reality, they only regulate offences.111

3. The Power of Command and the Duty to Obey The limits of the power to command are determined both by general legal norms of international and national law and by the military disciplinary and penal law (which in the Netherlands are considered different and distinct legal categories). The duty to obey orders is limited to lawful orders, that is to say lawfulness both in terms of law of national and of international origin; international law forms an integral part of the Dutch legal order (monism). Provisions of national origin are to be found in the Military Disciplinary and Criminal Codes (WMT and WMSr), and there is also a relevant provision in the Laws of War Act (Wet Oorlogsstrafrecht). First of all, an order, dienstbevel, is defined as an order which serves an interest of the military service and is given by a superior to a subordinate.112 'An interest of the military service' is usually understood very broadly, but, for instance, an order to cooperate in a private company's production of a television serial, entitled Combat, because it was expected to have a positive effect on the image of the armed forces, was considered not to serve an interest of the service - and a corporal who had refused to carry out an order to perform some services towards this film production was for this reason acquitted.113 'Not carrying out' comprises a refusal to carry out an order or the exceeding of its terms (Article 130 a MSr) For the purpose of orders, a guard or troops on guard are considered superior (Article 134 WMSr). In addition, orders which are given when the superior has no authority to do so are, in principle, unlawful, although the requirement of authority is no longer part of the definition of an order (dienstbevel) in the WMSr. The requirement of authority was removed as an element of the legal definition of the offence of disobedience in order to avoid the necessity of constantly having to prove such authority.114 ' '1 This legislative technique involving this type of expression has been strongly criticised by G. L. Coolen, Militair Tuchtrecht (3rd edn, Zwolle, 2000), pp. 35 et seq. 112

Art. 125 MSr, which pursuant to Art. 1 WMT applies also to the Disciplinary Code.

113

Rechtbank Arnhem 11 May 1998, (1999) MRT, p. 85.

114

See G. L. Coolen, Is ongehoorzaamheid aan een onbevoegd gegeven dienstbevel strafbaar?, (2001) MRT.

Military Law in the Netherlands

607

In the Disciplinary Code the most relevant provisions are Article 16 WMT on unlawful orders, and Article 17 WMT on contradictory orders. Article 16 refers back to Article 15: Article 15: The soldier (militair) who does not carry out an order (dienstbevel) acts contrary to military discipline. Article 16: The previous Article does not apply if the ordered conduct (gedraging, lit. behaviour) is unlawful or was in good faith considered to be unlawful by the soldier. The exemption of unlawfulness in Article 16 is by some considered superfluous because it is self-evident, whereas the exculpatory clause (good faith) in the same article has been criticised for being too much in favour of disobedience.115 In this connection, reference is made to Article 43 (2) of the Wetboek van Strafrecht, Criminal Code (of common criminal law), which rules out the possibility of punishing the subordinate who has obeyed an order which he believed in good faith to be lawful; the exculpating clause in Article 16 WMT turns this into the opposite.116 In fact, this author submits that the consistency between Article 43 (2) Criminal Code and 16 WMT is that both base themselves on the principle error iuris non nocet; the difference between them is that one may say that in the one case this principle works in favour of obedience to orders, in the other case it works in favour of disobedience. Article 17 provides: If two or more mutually contradictory orders have been given, the non-compliance with the order that preceded the last one is not contrary to military discipline. The provisions which concern us most in the Military Criminal Code are Article 131 and 132. These provide that the soldier who disobeyed an unlawful order cannot be punished (131); nor can he be punished if in good faith he thought it to be an unlawful order (132). When two contradictory orders have been given, the soldier who only obeys the last of them, cannot be punished for disobeying the first (Article 133). It is common understanding that Article 131 WMSr and Article 16 WMT in principle only grant the right not to obey an order, unless the carrying out of an order constitutes a criminal offence; in other words, there is a duty to disobey an order which, if obeyed, would lead to a criminal offence. 115 116

G. L. Coolen, 'Militair Tuchtrecht', supra n. I l l , p. 71.

To my knowledge there is only one reported case which reached a court, Arrondissementsrechtbank (District Court) Arnhem, 28 August 1992, (1993) MRT, p. 116, where an appeal to both the unlawfulness as a ground for exemption and the appeal to good faith as an exculpatory argument based on Art. 16 failed.

608

Leonard F. M. Besselink

Article 28 WMT makes it a disciplinary offence to give an unlawful order to a subordinate; Article 150 WMSr makes it a crime to order a subordinate to commit a crime. As to the question whether and to what extent the law of the host state is a standard for the lawfulness of an order, it is international law which comes into play because this determines to what extent the law of the host state has any role to play with regard to armed forces on its territory. In this respect Status of Forces Agreements, SOFAs, are of importance. Without going into detail, the relevant provisions of the various SOFAs, tend to leave military matters and command relations to be determined by the law of the visiting forces. In most cases, the armed forces are to respect the law of the host state only in other respects. This being said, there are provisions in the national legislation which aim to ensure that the laws of host states are respected. They seem to be inspired by the desire to avoid the host state acquiring the ability to interfere too easily with the relationships within the armed forces. Thus, Article 18 (2) WMT extends the applicability of military disciplinary law to service regulations concerning soldiers abroad also when they are off duty. This extends the possibility of maintaining proper behaviour of soldiers abroad and the respect of the laws and customs of host states. A notable provision is Article 170 WMSr, which makes it a criminal offence not to respect the laws of a host state. This provision has always been controversial, giving as examples homosexuality which may be an offence in host states and spying in favor of the Netherlands.117 In fact, the six reported cases in the case law since 1967 in which the prosecution relied on Article 170 WMSr, have exclusively concerned cases in Germany, most of which were traffic offences, one case of obstruction of German police officers in uniform, and one allegation of the unlawful possession of a broadcasting installation (in the latter case the suspect was acquitted). The lawfulness of an order includes its lawfulness under public international law. Thus there is a fair amount of case law on the so-called SITE guards who refused to do guard duties on military sites where nuclear weapons were allegedly kept, and on the so-called 'total objectors', totaalweigeraars, who refuse any cooperation with the armed forces and therefore do not wish to cooperate in proceedings with a view to having their conscientious objections recognised. The latter would let it come to an order to appear on the premises, which they 117

J. Roozemond, 'Wereldstrafrecht voor de Nederlandse Militair', (1958) NJB, p. 694. It is also somewhat curious to set the maximum punishment for such crimes equal to that of the host country. In Third World Countries, maximum fines can be exceedingly low for a soldier with a Dutch salary.

Military Law in the Netherlands

609

would refuse. In all of these cases, in highest instance the Höge Raad (and the then Hoog Militair Gerechtshof) have considered the question whether the relevant orders were in agreement with general principles of international law, customary public international law, treaty obligations such as the UN Charter, the Non-Proliferation Treaty, the various Geneva Conventions and Protocols, the rules and principles of Nuremberg and Tokyo, the laws and customs of war and warfare, and other international humanitarian law."8 The issue of superior orders in relation to the laws and customs of war will be discussed below in paragraph VI, 2f).

4. Social Rights of Soldiers and their Families The type of social rights which a soldier enjoys in the Netherlands is related to the type of armed forces we have. They are quite clearly of the occupational model, where soldiers work to earn a living and have a job, and their legal status is negotiable. This determines the kind and even the extent of facilities offered to soldiers and their families. Among the social rights which deserve special mention is the right to receive education. There is a duty to follow initial training and education (Article 13 Amar). One can be assigned to follow further training (bijscholing) related to the function to which one is assigned, but this can also happen at the request of a soldier (Article 14 Amar). The same applies to retraining for a different function (Article 15 Amar). The cost for these forms of training are borne by the armed forces, but each of the relevant provisions states that there is the possibility of creating a duty to repay the armed forces for the cost of training and education under certain circumstances, such as removal from the training or course, removal from one's position, or dismissal from the military service. More significant is the right to facilities for study for the purpose of improving internal and external job certainty (Articles 17b and 17c Amar). These rights exist only for those who have an appointment for an indefinite period. If the studies pursued are also or entirely in the interest of the service, the cost for the studies will be refunded for respectively 50% or 100%. Here, too, there is a provision for repaying these subsidies in case one is released from one's position before finishing the studies, or if one proves unsuccessful due to personal failure. Provision is also made that persons pursuing these studies will not be

118

HR 4 May 1981, NJ 1981/464; HR 29 November 1983, NJ 1984/599; HR 18 June 1985, NJ 1986/58; HR 27 May 1986, NJ 1987/413; HR 23 December 1986, NJ 1987/508; HR 24 March 1987, NJ 1988/82.

610

Leonard F. M. Besselink

charged with duties or activities on days on which they have to take exams, unless the interest of the service necessitates otherwise. Another particular social right may be mentioned in this context. This is the right of free choice of work (Article 19 (3) Constitution): The right of every Dutch national to a free choice of work shall be recognised, without prejudice to the restrictions laid down by or pursuant to an Act of Parliament. There is some case law on this provision in military cases. It concerned three judgements in situations in which a soldier had committed himself not to leave the service upon assuming active service, and on being granted certain study facilities. In all cases the relevant officers applied for dismissal from active service, which was refused. In the first case, the President of the Public Service Tribunal (Ambtenarengerecht)119 judged that the duty to serve (and the concomitant refusal of the dismissal) was regulated in the Amar and the WMSr (presumably the provisions which make the various forms of absence of soldiers an offence). It deemed the refusal of the dismissal to have a sufficient legal basis. Hence there was no infringement of Article 19 (3) of the Constitution. 120 The two other cases were decided by the Centrale Raad van Beroep. Upon careful scrutiny of the nature of Article 19 (3), the Centrale Raad took the refusal of dismissal to be a restriction of the right to free choice of work. The Centrale Raad in its first judgement considered Article 12 M Aw to be too general a basis for the restriction of a fundamental right by delegated legislation.121 Basing itself on this judgement, also the District Court in The Hague concluded to the unlawfulness of the refusal of the dismissal in a subsequent case.122 This case went to the Centrale Raad in appeal. This time, however, the Centrale Raad reversed its earlier judgement and without further explanation decided that Article 12 M Aw was a sufficient basis for a restriction of the fundamental right.123 The approach taken by the Centrale Raad in the first mentioned case had been criticised by a commentator on the grounds that Article 12 sub g M Aw mentioned the subject of dismissal, ontslag, for further legislation by order in council. 124 However, in the second case, the Centrale Raad did not really pro119

An administrative court abolished in 1992.

120

Voorzitter Ambtenarengerecht [President of the Civil Servants' Court] Den Haag, 20 March 1991, (1991) TAR, p. 138. 121

CRvB 10 December 1992, (1993) TAR, p. 34.

122

Arrondissementsrechtbank The Hague, 16 January 1995, (1995) TAR, p. 81.

123

CRvB 10 October 1996, (1997) TAR, p. 40.

124

G. L. Coolen in a case note to (1991) TAR, p. 138, whose views on both cases are set out in G. L. Coolen, De vrijheid van arbeidskeuze en het recht op ontslag, (1997) MRT, pp. 129-132.

Military Law in the Netherlands

611

vide any clear reasons for its conclusion at all. The lack of any clear reasoning as to why the earlier judgement was reversed and what precisely makes Article 12 M Aw a sufficiently precise and specific ground for delegation was subsequently criticised by others.125 There is no right to free military medical care for soldiers and their families in the Netherlands. In principle soldiers receive medical care from the armed forces in so far as it concerns service related accidents and illness.

5. Rules Governing Working Time a. Working Time and Compensation for Overtime The Arbeidstijdenwet, Act on Working Hours, contains special regulations for 'defence personnel' (which includes both military and non-military personnel), including a provision which grants the Minister of Defence the power to suspend the work-day norms with a view to the international functions of defence personnel. The regulations for defence personnel has found its most recent form in an amendment to Chapter 7 of Amar and Chapter 4 of the Burgerlijk amtenarenreglement defensie in a decree of 7 July 2001 - both are very similar as regards the principles and the details of the working hours regulations.126 For practical reasons, these decrees consolidate and incorporate the rules which are also to be found in the Arbeidstijdenwet and Arbeidstijdenbesluit (a decree issued by order in council, giving further regulations concerning working hours) which are applicable to defence personnel as well. The particular rules applicable to defence personnel which are contained in the decree, have been agreed upon in the Sector overleg defensie, which is the regular negotiating forum between representatives of the trade unions and the Ministry of Defence. In the following I focus on soldiers, but for civilians the same applies. The focus in practice is on the schedule of working hours which a commander has to establish for every soldier at least 4 weeks in advance. In drawing up the schedule, the rules of the aforementioned decree must be taken into account. The commander must determine the schedules in consultation with the medezeggenschapcommissie, a consultative co-determination committee. Working hours must to the greatest extent possible fall between 7 and 18 hours; the duration of working times per week must not exceed 38 hours on average over the period for which the schedule is determined. This maximum does not need to be observed for service which is done for the military organisation as 125 126

See case note in (1997) TAR, p. 40 by Riezebos. Staatsblad 2001, 348.

Leonard F. M. Besselink

612

determined by a commander-in-chief, the Secretary General of the Ministry of Defence, or the Commander of the Defensie Interservice Commando. The maximum weekly working times and the daily working hours do not apply to -

-

officers who lead units and have a rank higher than lieutenant, commander, or major, all officers of the rank of captain, or lieutenant colonel, or higher rank, unless the service involves dangerous work or the usual work is on night shifts, soldiers who are medical doctors, dentists, or specialists.

Also there is a general exception for those soldiers in the sense of Article 2 (2) Amar who are employed outside the Netherlands (Article 55 e Amar). This concerns soldiers who are employed under the supervision of an organ of the United Nations, or at the service of an allied organ or allied armed forces, or for the purpose of operations in the framework of an international agreement or other international engagements of the Netherlands.127 The working hours regulations, therefore, do not apply to national units abroad, such as the troops in Seedorf. In principle the soldiers at the disposal of international organs must comply with the working hours arrangements of the relevant international organisation;128 the entire chapter on the regulation of working hours does not apply to them.129 Overtime can be compensated either with money in accordance with a ministerial decree or with free time.130 A framework can be found in the Regeling voorziening bij vredes- en humanitaire operaties ( W H O 1996) for peace and humanitarian operations. b. Holidays and Special Leave Regulations concerning holidays and other forms of leave are to be found in Chapter 8 Amar. The rules applicable to the navy differ from those of the other forces (Articles 68-72 Amar). In the navy the principle is that three types of holiday are granted within a year: within the period between 1 June and 15 September one period of holiday leave of 15 working days is to be granted (summer holi-

127

Art. 2 (2) Amar.

128

Staatsblad 2001, 348, p. 42 and 47.

129

Except the rule of an average of 38 hours a week and some other provisions, such as those on compensation for overtime; this, however, seems to make little sense. 130

Arts. 60c and 60d Amar.

Military Law in the Netherlands

613

day), in the period between 1 December and 1 February, one period of 10 working days shall be granted (winter holiday); within one calendar year another four days can be granted at the choice of the soldier (that is to say, it does not need to be one single period of four days). The Commander-in-Chief can diverge from this principle 'in special cases' and determine different periods; a commander can in special cases grant leave outside the indicated periods and also combine the holidays into one period. For the other forces, there is no division between summer, winter, and other holidays (Articles 73-80 Amar). Depending on rank, the total number of holidays in days per calendar year is fixed (23 below the rank of major, 24 for the rank of major and above), with additional days depending on age. The Minister of Defence can make regulations on holidays which diverge from the Amar if the interests of the service so require. However, if such a special regulation leads to a situation in which a soldier enjoys fewer holidays than would be the case under the provisions of Amar, he retains a claim on the number of days which make up the difference (Article 81 Amar). There is also a kind of leave, the so-called embarkation leave, inschepingsverlof, in cases in which a member of the armed forces will be outside Europe for longer than 6 months, or on board a ship outside the Netherlands. These range, depending on the length of stay abroad, from 5 to 10 days before departure (Article 83 Amar). Also after serving abroad, a number of extra days leave are granted, depending on the duration of stay outside Europe or (for the navy) on board a ship outside the Netherlands, the so-called disembarkation leave, ontschepingsverlof (Article 84 Amar). Apart from the forms of leave mentioned so far there is also the so-called special leave, buitengewoon verlof (Article 85-87 Amar). As a general rule, this is granted in enumerated special circumstances, such as the exercise of a legal duty or the right to vote or stand for election, attending meetings in the framework of regular consultations of representatives of trade unions, for work for trade unions who are represented at the regular consultations in accordance with relevant ministerial decrees, searching for housing in case of change of duty station, moving for this reason, marriage (including relevant religious ceremonies), death of spouses, children, and specified close relatives (including relevant religious ceremonies), on giving birth by a spouse, certain marriage jubilees, religious retreats organised by the spiritual counsellors of the armed forces, and in the last six months of the service for looking for employment elsewhere (Article 85). Outside these cases, a commander may grant a maximum of 10 days leave for other special circumstances, and a commander-in-chief can do so without a maximum of leave to be granted, with or without pay, in accordance with ministerial regulations (Article 86 Amar).

614

Leonard F. M. Besselink

A commander-in-chief can grant special leave of long duration with or without pay. If the leave is for predominantly personal reasons, this can only be granted without pay and for a maximum of six months. If it also serves the public interest, the duration can be with pay and for a maximum of one year. In case of a soldier requesting a special leave of long duration for the purpose of working for an international organisation, for the Netherlands Antilles, or as a special advisor to a foreign power, and if this predominantly serves the general interest, his commander-in-chief can grant a leave for long duration without pay for a maximum of three years (Article 87 Amar). For soldiers who serve in the Netherlands, there is the possibility of special leave for parental care of one's own children younger than 8 years of age. This parental leave can be granted for a maximum of half the normal service time for the duration of a maximum of 6 months (Article 87 a Amar). Special rules apply for soldiers who do shift work (Article 88 Amar). The general exception as to members of the armed forces who have been placed at the disposal of international organisations also applies here. One provision which may be of some relevance with a view to multinational cooperation, in particular for troops stationed abroad, is Article 66 Amar, which concerns the situation in which a soldier intends to spend his leave in another country than the one in which he is stationed. In this case, the person competent to grant the leave can for operational reasons require the soldier to inform him of this and of the countries he intends to visit.

6. Legal Remedies, in Particular Rights to File a Complaint a. General Right to File a Complaint For soldiers, the right to file a complaint exists in two major forms, one of a disciplinary nature and the other administrative in nature. One is the right to file a complaint against a verdict of guilty in disciplinary procedures or against an imposed disciplinary punishment. This is governed by disciplinary law (WMT Article 80a-80t). Complaints must be filed with the superior of the commander who imposed a punishment or declared a soldier guilty, within 5 days after the verdict in first instance. After this complaint procedure, appeal to a court can be made against disciplinary punishment or a verdict of guilty. The other form of complaint is considered to be governed by administrative law and concerns the right to file a complaint against two things. First, a complaint can be lodged against an order which the soldier finds objectionable {'zieh bezwaard voelf)·, second, a complaint can be lodged against treatment

Military Law in the Netherlands

615

of a superior by which a soldier finds himself aggrieved or unfairly treated (Article 9 (1) MAw and 34 (1) KwDpl). The complaint must be filed with the commanding superior who is competent to impose punishment on the soldier against whom the complaint is filed, the so-called complaints superior (beklagmeerdere), m within 6 weeks after the event occurred which is complained of. These complaint proceedings are merely within the chain of command, because it concerns issues of order of a non-legal nature which, therefore, do not fall within the jurisdiction of the courts. In fact, this military complaints procedure is a specific form of the general complaint proceedings against the conduct of an administrative organ or a person working under the responsibility of an administrative organ, the so-called klachtrecht. This complaint is directed against the conduct of an administrative organ, and can always be entertained against any administrative organ under the General Administrative Law Act (Algemene Wet Bestuursrecht), Chapter 9. The rules of Chapter 9 of the General Administrative Law Act apply, with some adaptations under the Militaire Ambtenarenwet 1931, to the special right to complaint we just described. Except for time limits in cases when one of the soldiers involved is abroad for reasons of service, the major adaptation is that this right of complaint is restricted to the type of behaviour (and order) indicated above. As with the general right to file a complaint against the decision of an administrative organ, there is a duty to deal with the complaint in a particular manner (hearing the complainant, etc.) within certain time limits (Articles 9 (4)-9 (12a) Awb). No appeal is possible against the manner in which the administrative organ deals with the complaint (Article 9 (3) Awb); this also applies to the military right to complaint we are discussing here. These complaints proceedings should not be confused with the possibility of appeal against decisions of administrative organs, which are also open to the military. This concerns not so much the conduct of an administrative organ, but focuses on written decisions being legal acts under public law, that is to say, which aim to have legal effects (publiekrechtelijke rechtshandeling) (Article 1 (3) Awb). Such an appeal lies with the administrative chamber of the district courts. As we mentioned elsewhere in this report, it is in military cases concentrated in the District Court in The Hague with a further appeal to the Centrale Raad van Beroep. In general, this form of appeal to the administrative court, concerns the legal status of soldiers. It must concern a written decision constituting a

131

Art. 9 (1) MAw juncto Art. 1 (0 Besluit klachtrecht militairen, Stb. 1991, 535.

616

Leonard F. M. Besselink

legal act under public law. Appeal to an administrative court against this type of decision is - as a rule - only open after first having made an objection against the decision to the relevant public authority and this objection has been rejected (Article 7 (1) Awb). Appeal to the administrative court can only concern the lawfulness and not the effectiveness or appropriateness of the relevant measure. This is quite different from the complaints procedure as described above. b. Complaint to Ombudsperson Institutions The complaints procedure we just described concerns internal proceedings. The external complaints proceeding consists of filing a complaint to an ombudsperson institution. This external complaints procedure can be followed after an internal complaints procedure. This is also the understanding concerning the complaints procedure for soldiers. Above (paragraph II. 5. c.), we discussed the two ombudsperson institutions, the I G K and the National Ombudsman. The IGK is, as we mentioned above, part of the armed forces, but an independent entity within it.132 As recourse to the IGK is not governed by any rules or regulations, a soldier is always free to approach the I G K with any complaints. About 400 to 500 individual requests per year are made to the IGK. These are treated confidentially. In individual cases, the I G K usually takes the role of mediator who inquires, informs, consults, and mediates. The functioning of the National Ombudsman is regulated by the Wet Nationale Ombudsman, the Act on the National Ombudsman, and statutory instruments based on this Act. He judges the propriety of the conduct, decisions, and decision-making. This includes all acts of officials under the authority of the Minister of Defence (and, of course, his own acts and omissions). Access exists except if - put briefly - a matter is pending or has been dealt with in court, concerns general policy of the Government as determined by the Council of Ministers, Acts of Parliament and statutory instruments. 133 Complaints have to be filed in writing, usually within a year after the conduct took place and after the complaint has also been expressed to the relevant official or office against whom the complaint was filed.134

132 Information about the history and tasks of the IGK is to be found at his website (in Dutch) at , (13/9/2002). 133

Art. 16 Wet Nationale Ombudsman.

134

Art. 12 Wet Nationale Ombudsman.

Military Law in the Netherlands

617

c. Right to Petition There is always the possibility of using the general and fundamental right of petitioning the competent authorities under Article 5 of the Constitution, which is also open to soldiers.135 The only formal requirement for petitions is that they are to be submitted in writing. This constitutional right is an independent right of petition, which strictly speaking can always be used without regard to time limits, other formal requirements, or the existence of other complaints procedures or legal proceedings. However, this right is partly implemented within the framework of complaints procedures. The right to petition under Article 5 of the Constitution does not entail a legal right to a response. d. Complaint about the Behaviour of Fellow Soldiers There is no specific possibility of complaint about the behaviour of fellow soldiers. These, however, could be the substance of a complaint to the IGK, the National Ombudsman and under the general right of petition.

7. Rights of Institutional Representation There is an elaborate system of consultation with representatives of the trade unions of soldiers with a view to determining aspects of working conditions and pay. A central element of this system is referred to as the system of 'organised consultation', georganiseerd overleg. The main principles are set out in the Decree on Organised Consultation Sector Defence, Besluit georganiseerd overleg sector Defensie.m This is based for civilians on Article 125 (1) sub m of the Ambtenarenwet, for professional soldiers on Article 12 sub ρ M Aw, and for conscripts on Article 21 sub m KwDpl. On the basis of this decree, there is one general Sectorcommissie Defensie and there are 7 special commissions, one for each of the respective forces, divided into soldiers and civilians employed by the forces, and one for civilians in the central organisation at the Ministry of Defence. On each of the commissions the four main trade unions are represented. Consent must be reached on main issues which concern the rights and duties of soldiers and civilians; on

135

Art. 5 Constitution: "Everyone shall have the right to submit petitions in writing to the competent authorities." 136 Staatsblad 1993, 353.

618

Leonard F. M. Besselink

other issues this is not strictly necessary. There is an intricate system of dispute resolution attached to all this. Apart from this 'organised consultation', there is also the consultation nearer the grass roots level. This has recently found a new form in the Royal Decree on Co-Determination with Regard to Defence Personnel, Besluit medezeggenschap defensie, (Stb. 1999, 361). In the units in all forces there are now consultative organs on co-determination, medezeggenschapscommissies.ni The head of the unit (for soldiers: the commander; for civilians: head of the unit) consults the commission of representatives elected by the soldiers of a unit in a meeting which he chairs. He may consult, on his own initiative or that of the commission, on all matters concerning the unit except individual personnel matters. Also, the content and size of the task of the unit and matters which are dealt with in the 'organised consultation' cannot be the object of consultation. On the other hand, the head of the unit is under the duty to consult the commission on a whole range of specified measures, such as the implementation of general personnel policy in the unit, the manner in which the conditions of work and the service are implemented, matters concerning safety, health, and well-being in relation to work in the unit, the organisation and working methods in the unit, and matters touching on the living conditions in the unit. The meetings should result in an advisory opinion tendered to the commander. No advice can be tendered on measures which aim to ensure the appointment of personnel, orthe readiness and undisturbed functioning of the armed forces. The commander should inform the organ within two months on whether he will follow the advice or not. In case he does not follow the advisory opinion, renewed consultation is required, after which there is the possibility of placing the matter before a committee for dispute settlement, which tenders advice to the Commander-in-Chief on the relevant matter. If the tasks of the unit or the special situation of the unit urgently require it, the commander may take decisions without prior consultation. A general exception to the applicability of this system of co-determination is found in Article 2, which states that - among other situations such as the State of War and cases determined by the Minister of Defence - rules do not apply during exercises or for personnel who work for a unit abroad which is not or not exclusively under Dutch command. This means that it does not apply to multinational units.

137 Previously "consultative organs", overlegorganen, based on a ministerial decree on consultative organs of the units, Regeling onderdeelsoverlegorgaan, see G. L. Coolen, 'Militair en recht', supra, n. 71, pp. 44-59.

Military Law in the Netherlands

619

V. The Relationship of the Superior to Subordinate Personnel 1. Legal Rules Concerning the Relationship Between Superior and Subordinate Article 67 WMSr defines the relationship between superior and subordinate. It exists between soldiers mili tairen') if one is superior by having a higher rank, or, if the soldiers are of the same rank, by age in circumstances related to the service, or independent of rank or age if a soldier has other soldiers under his command as a consequence of being in a commanding function or of a decision of the competent authorities. For the purpose of giving and obeying orders, guards - or troops on guard duty - are considered superior (Article 134 WMSr).

2. Subordination of Soldiers to the Command of a Superior of Foreign Armed Forces The Constitution provides for the possibility of transferring legislative, administrative, and judicial powers to international organisations (Article 92). Such a transfer should have its basis in a treaty, and this treaty must be approved by a two thirds majority in both Houses of Parliament if such transfer diverges from constitutional provisions. In the case of transfer of military command to a foreign superior, the relevant constitutional provision which may be at stake is the provision which vests supreme authority over the armed forces in the government (Article 97 (2)). There is no treaty in force which, with a view to this, has been approved with the required two thirds majority. It may seem to be difficult to submit a Dutch soldier under the exclusive command of a foreign serviceman without interfering with the constitutional provision on supreme authority in Article 97 (2) of the Constitution in any other manner. This matter was not raised when the treaty which made bi-national guard duties of the 1 (German/Netherlands) Corps possible, presumably because the command of a foreign superior is not exclusive. In fact the relevant agreements were approved tacitly, which is legally not possible if the treaty may diverge from provisions of the Constitution. This provides a legal assumption that the supreme command and ultimate power over the armed forces ("full command" in NATOlanguage) has not been transferred by this treaty. As to the national law on possible relationships of superiority between Dutch and foreign soldiers, we must make a number of different remarks. Theoretically, there is a possibility of equating a foreign soldier to a Dutch soldier in order to place a Dutch soldier under the command of the foreign soldier.

620

Leonard F. M. Besselink

Because Article 67 WMSr uses the expression 'militairen', which is defined in Article 60 in terms of Dutch soldiers, under Dutch law, in principle there cannot be a relationship of superior and subordinate between a Dutch and foreign soldier. However, by Royal Decree under Article 60 a, foreign soldiers can be equated with Dutch soldiers for the application of certain provisions determined in that same decree (a possibility of which no use has been made so far). Article 67 a makes it possible to create equivalence of foreign ranks with Dutch ranks by Royal Decree, such a procedure has not yet been carried out. Although the possibilities of Article 60 a and 67 a WMSr make it potentially possible for a foreign soldier to be the superior of a Dutch soldier, this would require a further decision by Royal Decree. This follows from Article 75 a WMSr which provides that a relation of superior and subordinate can only exist in so far as this is determined by Royal Decree or an authority determined by Royal Decree. Again: such an event hat not yet occurred. Nevertheless, a Dutch soldier will have to comply with a foreign soldier's instructions on the basis of a different construction.138 This can be based on the duty to carry out a service regulation, dienstvoorschrift. A service regulation is "a written decree of a general purport made by or pursuant to an order in council or order in council for the Realm, which concerns an interest of the military service and contains a prohibition or command aimed at a soldier" (Article 135 WMSr).139 The Amar is, therefore, a service regulation. It states in Article 137 Amar that the soldier in active service has to do as he is told, which includes what he is ordered to do by a foreign 'superior': "The soldier in active service is under the obligation to carry out the work and services with which he has been charged (hem opgedragen) to the best of his abilities, and to know the applicable regulations and orders which result from this."140 The expression 'work and services with which he has been charged', dienstopdracht, comprises whatever a soldier has been assigned to do by a foreign soldier. Not carrying this out properly is a disciplinary and criminal offence.

138

See G. L. Coolen, Dienstopdrachten gegeven door buitenlandse militairen, (1996) MRT, pp. 238-241. 139 "Onder dienstvoorschrift wordt verstaan een bij of krachtens algemene maatregel van Rijksbestuur of van bestuur dan wel een bij of krachtens landsverordening onderscheidenlijk landsbesluit gegeven schriftelijk besluit van algemene strekking dat enig militair dienstbelang betreft en een tot de militair gericht ge- of verbod bevat." 140

"De militair in werkelijke dienst is verplicht de hem opgedragen werkzaamheden en/of diensten naar beste vermögen te vervullen, en de uit dien hoofde voor hem geldende voorschriften en orders te kennen."

Military Law in the Netherlands

621

This author's interpretation is that the service regulation of Article 137 Amar reinforces the integrity of 'full command', if we are to follow the principle on which the German Anweisung zur Zusammenarbeit is based. It is, in the end, a piece of Dutch legislation which remains at the basis of the duty to carry out an instruction of a foreign 'superior'. Contrary to the German situation is the fact that usually the regulation of Article 137 Amar is the only legal basis for carrying out an instruction given by a foreign soldier. Although it is possible to add a special order to a soldier or a unit of soldiers to obey a foreign soldier, this has - insofar as we have been able to find out - not been usual practice since the Second World War. One could, however, take the assignment of soldiers to a foreign unit or under foreign command to imply an order to cooperate with this foreign unit or commander; but this seems to be too indirect a construction to justify a duty to obey. Again, theoretically, it could be possible that a treaty is at the basis of cooperation in a multinational military organisation. However, it would be unusual to find an express duty to obey a foreign superior directly formulated in such a treaty. This implies that it requires further national implementation acts, which could still be considered to leave 'full command' intact even if they have to conform to the terms of the relevant treaty provisions. There is one exception to this which is contained in the Convention between the Government of the Kingdom of the Netherlands and the Government of the Federal Republic of Germany on the General Conditions for the 1 (German/Netherlands) Corps and Corps-related units and establishments of 6 October 1997 (hereafter: the Convention).141 Article 10 of this Convention reads: Guard Duty 1. Bi-nationally used facilities or premises may be guarded by bi-national guards, if the guard personnel of the sending State are vested with the same competencies as guard personnel of the receiving State. 2. Regarding the execution of their guard duties, bi-national guards are exclusively subordinated to the competent superior guard authorities of the receiving State [italics added]. 3. [...] This provision is significant in as much as it speaks of a soldier being "exclusively" subordinated to a foreign soldier. Although it only regards the function of guard duties, it is difficult to escape the conclusion that the soldier of the sending state is no longer under the command of his own national authorities. This conclusion is full of implications.

141

Officially published in the Netherlands Tractatenblad, 1998, 117.

622

Leonard F. M. Besselink

For one thing it could be argued on the Dutch side that being under exclusive command of the German guard authorities is an infraction of Article 97 (2) of the Constitution, which allocates ultimate authority over the armed forces to the Dutch government. (A similar argument could be made mutatis mutandis for the German soldier on guard in the Netherlands under the Convention.) It transpires that in preparing the legislation vesting identical competence in foreign soldiers, in the sense of Article 10 (1) of the Convention, one has been careful not to make the military disciplinary and criminal law of the Netherlands applicable to German (or other foreign) soldiers. However, this is clearly not the only and decisive issue with regard to the question whether ultimate authority still lies with the original constitutional authorities.142 Another issue is whether Article 10 (2) of the Convention creates of itself a relationship of subordination between the foreign guard and the guard superior; in other words, the question can be raised whether Article 10 (2) is selfexecuting in this respect. It is true that the first paragraph of Article 10 of the Convention requires a national act of implementation in order to create binational guards, viz. a piece of legislation which vests the same competence in a soldier from a sending state by the receiving state. However, once this condition has been fulfilled, the second paragraph of Article 10 of the Convention could be considered self-executing in the sense that this provision itself creates the relationship of subordination. This means that this Convention diverges from Article 67 (read in conjunction with Article 60) WMSr, which defines the relationship of subordination between soldiers; also it diverges from Article 75 a WMSr, which requires a Royal Decree for creating this relationship between a Dutch and a foreign soldier (see above).

142

The present Rijkswet does not say so explicitly, but it is common understanding that the term militairen refers to Dutch soldiers in the sense of Art. 60 WMSr. It would, hence, seem to be possible simply to make the Rijkswet applicable to foreign soldiers on the basis of a Royal Decree in the sense of Art. 60 a WMSr. This has, however, not been done. The Minister of Defence explained this in response to questions on the pending bill by stating that there is no objection against not using the possibility of Art. 60 a WMSr, because the N A T O Status of Forces Agreement imposes the duty for foreign armed forces to respect the laws of the host state and for the sending states to take necessary measures in this respect. With regard to the sanctioning of the duties on the use of violence, this is a satisfactory answer. However, it is possible under Art. 60 a WMSr to extend the term "militair" to foreign soldiers in precisely the same manner as the Act of Parliament does now, and determine that the rules established by and pursuant to the Rijkswet also apply to foreign soldiers designated by the Minister of Defence pursuant to a treaty or a decision of an international organisation. In this respect, it should be noted that Art. 60 a WMSr was not intended to be restricted to the sphere of military criminal and disciplinary law, and until it was taken up into the WMSr existed for precisely this reason as a separate Art. IV in the Rijkswet 4 July 1963, Stb. 1963, 295.

Military Law in the Netherlands

623

A similar question could be raised with regard to the duty to obey a foreign superior. This duty may be implied in Article 10 (2) of the Convention, but it is quite unclear whether such an implied duty suffices to create a legal duty for foreign guards. If it does, than this would mean that on the Dutch side the service regulation contained in Article 137 Amar is no longer the basis for carrying out tasks assigned to a Dutch soldier by a German guard superior. On the German side it would seem to mean that it is no longer an Anweisung zur Zusammenarbeit in conjunction with § 7 Soldatengesetz which is at the basis of the duty to obey, but the Convention or the Act of Parliament by which the Convention was approved. This duty to obey a command has further ramifications. This is a consequence of the legal rule that a guard on duty must be considered a superior in a functional sense with regard to giving commands to a soldier approaching a military object which he is guarding (Article 134 WMSr). The reason for this 'functional' superiority is practical, because a guard must be able to fulfil his task properly also with regard to persons approaching a military object of whom it is not apparent that they are soldiers or that they are soldiers of superior rank. Does this functional duty to obey also exist with regard to a German guard on duty in the Netherlands (and a Dutch guard on duty in Germany), so that a German soldier is superior to a Dutch soldier? And if so, what is the legal basis to do so? If the legal basis is not the Convention - as would seem to be the case - it is the relevant national legislation, which is for Dutch soldiers the service regulation of Article 137 Amar and for German soldiers the Anweisung zur Zusammenarbeit. In this respect, the classic constructions which the Convention seemed to do away with in the relationship between a guard and a guard superior, crops up again in the relationship between a guard and other soldiers. There is a relative weakness in these classic constructions, in as much as - at least on the German side - they create relationships between foreign soldiers and national soldiers which are legally precarious, because in principle they can be revoked.

3. Service Regulations and their Legal Nature A service regulation (Dutch: dienstvoorschrift), is "a written decree of general purport made by order in council or order in council for the Realm, which concerns an interest of the military service and contains a prohibition or command aimed at a soldier" (Article 135 WMSr). 143 A service regulation is mainly to be 143 "Onder dienstvoorschrift wordt verstaan een bij of krachtens algemene maatregel van Rijksbestuur of van bestuur dan wel een bij of krachtens landsverordening onderschei-

624

Leonard F. M. Besselink

distinguished from an order, dienstbevel, by virtue of the fact that is of a general nature, that is to say of a rule-like nature, as opposed to an order, which is concrete. Service regulations must be in writing, and the ability to issue service regulations is more restricted. The Decree Implementing the Military Criminal Code and the Military Disciplinary Act, Rijksbesluit uitvoeringsbepalingen militair straf- en tuchtrecht, provides that the competent authorities to issue service regulations are the Minister of Defence, the authorities he or she so designates, and the military commanders who have the power to impose disciplinary sanctions and their commanding superiors. In a ministerial decree, the Minister of Defence has designated the (other) authorities who are competent to issue service regulations, among whom other civilians than the Minister of Defence, such as the Secretary-General of the Ministry of Defence, the directors-general at the ministry, and the directors of the central organisation of the ministry are included.144

VI. Sanctions 1. Disciplinary Law a. Disciplinary Power Disciplinary power and disciplinary measures are regulated in the Wet Militair Tuchtrecht (WMT). However, as we saw in passing above, there are certain general definitions to be found in the Wetboek voor Militair Strafrecht (WMSr) which are also applicable in disciplinary affairs. b. Relation to Criminal Law According to the Legislature, an offence is criminal when it causes (fear of) damage to the readiness of any branch of the armed forces effectively to carry out an operation or exercise effectively.145 Other offences are disciplinary offences. denlijk landsbesluit gegeven schriftelijk besluit van algemene strekking dat enig militair dienstbelang betreft en een tot de militair gericht ge- of verbod bevat." 144 Art. 4 of the Uitvoeringsregeling militair straf- en tuchtrecht 2000, ministerial decree of 22 December 1999, CST 99/0117/029 1999003890, issued by the State-Secretary of Defence, not officially published, but contained in Th.W. Van den Bosch and others, Militair straf- en tucht recht (Arnhem), vol. II, bijlage VIII, pp. 7 et seq., 12. 145

Whether the Legislature has been successful, is another matter.

Military Law in the Netherlands

625

Although disciplinary and criminal offences are different entities under Dutch military law, it can, of course, happen that a certain act constitutes a disciplinary offence as well as a criminal offence. In case of such a concurrence of disciplinary and criminal offences, the matter must be transferred to the public prosecution to be dealt with in the manner of criminal law. Should the criminal nature of the offence become evident only after a disciplinary punishment has been imposed, the disciplinary punishment will be taken into account when a punishment in the criminal case is imposed. c. The Purpose of Disciplinary Law The purpose of disciplinary law is to maintain and restore discipline. Although this obviously has ulterior motives, it is important to insist on this because of the separation of disciplinary law from criminal law. On the other hand, if it comes to other considerations than those of maintaining or restoring order, such as considerations of mere effectiveness and efficiency, other measures than disciplinary measures are the right ones to use. d. Disciplinary Measures There are four types of sanctions: reprimand, fine, penal duties {strafdienst), and confinement to the barracks (uitgaansverbod). There is no official hierarchy among these types of disciplinary punishment. The reprimand is given in writing (Article 42 WMT). The fine is of a minimum of EUR 2,00 and a maximum of EUR 90 per offence, with a maximum of EUR 90 per calendar month; except for disciplinary offences during international operations outside the Kingdom, when the maximum per offence is EUR 90 and the monthly accumulated maximum EUR 270 (Article 43 WMT). The penal duties consist of the performance of services in accordance with rank outside the official working hours. The maximum is three hours per 10 working days. There is an accumulated maximum of performing such extra duties during no more than 15 days per calendar month; if this maximum is reached, the remaining extra duty hours will have to be postponed until the next month. (Article 47 WMT). Confinement to the barracks consists of the duty to remain present in a military place determined by the commander; it may include the prohibition by the commander to visit certain buildings or premises. Confinement to the barracks can be imposed only for illicit absence and the refusal to obey an order. It can last no more than 4 consecutive days (Article 48 WMT). The punishment of confinement to the barracks can be combined with the punishment of penal duties.

626

Leonard F. M. Besselink

e. Disciplinary Law and the European Convention on Human Rights Most problems stem from the fact that disciplinary measures are not always imposed by an independent court, but because ultimately there is an appeal to an independent court against imposed disciplinary sanctions, even if the imposition of a punishment were to be problematic, there would be no infringement of Article 6 ECHR as the sanctions would ultimately be imposed by a court of law in accordance with this provision. That the procedures of military disciplinary (and criminal) procedure are in conformity with Article 6 ECHR has been the view of the courts in the Netherlands.146 The difficulty of imposing sanctions which are based on a rule which is too vague as to which behaviour it exactly sanctions (as may be the case in some other countries), has in the Netherlands generally disappeared since the adoption of the present Act on Military Discipline, which specifically describes certain behaviour and conduct as infractions on discipline. /

The Disciplinary Procedure and Legal Remedies

The procedure begins with the handing out of a written accusation to the suspect (Article 51 WMT). This must be done within 21 days after the deed occurred or (in some cases) has been discovered; this period is 60 days when it concerns a deed during an international operation outside the Kingdom and the commander and soldier are not in the same country (Article 53 WMT). Although this is not explicit in the legislation,147 the commander to whom the disciplinary offence has been reported does not have an absolute duty to proceed with handing out an accusation, which starts up the disciplinary procedure.148 Here the principle that there is discretion to prosecute or not to 146 Theoretically, the deprivation of liberty, which is not immediately decided upon within the terms of Art. 5 ECHR by an independent court might be problematic, but since the Engel case, this problem has in practice been removed. The military chamber of the District Court of Arnhem has deemed disciplinary proceedings not to be a criminal charge in the sense of Art. 6 ECHR, Arrondissementsrechtbank Arnhem, 14 March 1995, (1995) MRT, pp. 227 et seqq.; the Centrale Raad van Beroep, 28 September 2000, (2000) MRT pp. 208-210 judged that the case law of the ECHR required a "serious criminal charge", which is not present in disciplinary affairs, and that the proceedings must be viewed in their entirety, for which the fact that in the end appeal to an independent court is guaranteed, is decisive. 147 To the contrary: Art. 27 WMT makes it a disciplinary offence for a soldier not to take measures when a subordinate infringes or has infringed on a rule of disciplined conduct. However, the measures which should be taken do not need to consist in reporting the offence to the commander; a warning, for instance, may be a sufficient measure. 148

See Coolen, 'Militair Tuchtrecht', supra, n. I l l , p. 145.

Military Law in the Netherlands

627

prosecute, a general principle of criminal law in the Netherlands, has been drawn to its logical consequence in the field of disciplinary law: if there is discretion in whether to pursue criminal prosecution, then a fortiori there should be discretion in imposing disciplinary measures. By way of preliminary inquiry, the commander may hear the accused, witnesses, and experts (Article 61 WMT). At least twenty-four hours must separate the moment at which the accusation was handed out from the beginning of the inquiry. The accused has a duty to appear at the inquiry. The inquiry is not public. The accused may at any time during the procedure seek the assistance of a so-called confidant, vertrouwensman,U9 who must as a rule be chosen from the military or civilian personnel of his own unit, although in special cases - for instance the small size of the unit or the special circumstances of the case - the commander may allow another person to act as confidant (Articles 56-59 WMT). Acting as a confidant in disciplinary proceedings is a service duty. The commander must decide the case at the latest on the first working day after closing the inquiry. Also, the commander must within 21 days of the handing-out of the accusation take a decision on the case (this time limit can be extended under certain circumstances, among which is the suspension of the inquiry in accordance with the provisions of the WMT). If this period expires without a decision being taken, the procedure ends ipso iure (Article 54 (1) sub b, WMT). Within five days after the written version of the decision has been delivered, a soldier who has been declared guilty has the right to complain of this or of the penalty imposed (not only the fact of the imposition of the penalty but also the modalities of its execution) to the commanding superior of the commander who decided the case in first instance. In principle, the same procedure as in first instance applies, with slightly different time limits. No reformatio in peius is possible. After the decision on complaint, appeal lies with the three-member military chamber of the District Court at Arnhem (of which one member is a soldier, see above paragraph IVa). If the soldier is in the area of command of the Commandant der Zeemacht in het Caraïbisch gebied (CZMCARIB), the Gerecht in eerste aanleg, Court of First Instance of the Netherlands Antilles or Aruba is competent. Also, if a mobile court has been established and the soldier is within the remit of this court, this mobile court shall be competent.

149

Although the expression in the WMT refers to male persons, quite obviously the confidant can also be a woman.

628

Leonard F. M. Besselink

The subordinate's right to appeal only exists against a declaration of guilt or an imposition of a punishment on the accused. Also the complaints superior, beklagmeerdere, has a right to appeal to the court against a decision in first instance of a commander, if the subordinate has not made a complaint. The inquiry at the court is public. The accused can again designate a confidant, who in appeal can also be an advocaat. Also the court can assign an advocaat as confidant to an accused even without him requesting so. There can be a reformatio in peius. No appeal is possible against the decision of the court. Nevertheless, the procureur-generaal of the Höge Raad can lodge a request for so-called revision in the interest of the law on points of law only. A decision of the Höge Raad in these proceedings has no effect on the parties in the case. g. Representation of the Armed Forces during Disciplinary Proceedings There is no special office representing the armed forces during any stage of the disciplinary proceedings. The proceedings up to and including the decision on complaint against a disciplinary decision in first instance are so to speak an 'internal' matter of the armed forces; therefore no formal representation of the armed forces is called for. On appeal at the court, the proceedings are really between the appellant and the commander who made the disciplinary decision. Therefore, there is no special role for the prosecution in military affairs, which is the public prosecutor of the District Court of Arnhem, officier van justitie, except that the public prosecutor has the special right of putting forward his views on a case to the court (Article 91 WMT), a right which he frequently uses. h. Measures of Commendation There is the possibility of being awarded military honours as a mark of distinction in accordance with rules established by Royal Decree, if a soldier has delivered special, or long-standing and honourable services. A special promotion can also be made by way of reward for a very important feat of arms or other act or accomplishment by which he has especially distinguished himself. Finally, a titular rank can be granted for having contributed in a special manner to the promotion of the interests of the armed forces (Article 130 Amar). Commemorative medals are also awarded, especially after service in a major international military operation.

Military Law in the Netherlands

629

2. Military Criminal Law a. General Issues The Wetboek van Militair Strafrecht, Military Criminal Code (hereafter WMSr), defines a number of offences apart from those in the common Military Code ( Wetboek van Strafrecht). The Wet militaire strafrechtspraak, Act on Military Criminal Procedure, gives special rules with regard to the prosecution and trial of military criminal offences. It applies principally to soldiers (militairen) in active service (in werkelijke dienst). This is the case for professionals on fixed term appointments and those for an indefinite period for the whole duration of their appointment. Reservists and conscripts are considered to be in active service under the circumstances summed up in Article 62 WMSr: -

-

upon their arrival at their destination when they are called into active service or have come into active service voluntarily, or they have reported for active service or been taken up into it, in both cases until departure for long furlough, for the duration of participation in a military exercise, or in training, or during any other military activity, when during long furlough or as a suspect they are present in a military criminal case, when they undergo punishment in a military establishment or on board a military vessel.150

Article 65 WMSr extends the application of the Military Criminal Code to acts perpetrated by prisoners of war (cf. Article 84 of the 1949 Geneva Convention on Prisoners of War). Until 1963, Article 65 mentioned also "foreign soldiers (militairen) who, with permission of the military authorities, accompany or follow the armed forces while at war". This was deemed no longer appropriate under the modern 150 WMSr, Art. 62: "De in artikel 60 no. 2 bedoelde vrijwilliger bij de krijgsmacht of de dienstplichtige wordt geacht in werkelijke dienst te zijn: I o . zodra hij, voor de werkelijke dienst opgeroepen of vrijwillig in werkelijke dienst komende, op de plaats van zijn bestemming is aangekomen, zodra hij zieh voor deze dienst heeft aangemeld of zodra hij voor deze dienst is overgenomen, een en ander totdat hij met groot verlof vertrekt; 2°. zolang hij deelneemt aan militaire oefening of militair onderricht, dan wel enige andere militaire werkzaamheid verricht; 3°. zolang hij als vrijwilliger of dienstplichtige of als verdachte in een militaire strafzaak bij enig onderzoek tegenwoordig is; 4°. zolang hij uniformkleding of het voor hem vastgestelde kenteken of onderscheidingsteken draagt; 5°. zolang hij in een militaire inrichting of aan boord van een vaartuig der krijgsmacht straf ondergaat."

630

Leonard F. M. Besselink

relationships among allied forces. Instead in Article 60 a WMSr it was determined that by Royal Decree foreign soldiers can be equated with Dutch soldiers for the application of provisions to be determined by Royal Decree. So far no use has ever been made of this possibility. With regard to foreign soldiers, two other provisions merit mention. Article 67 a provides that an equation of foreign military ranks can be made by Royal Decree or on behalf of the King by the Minister of Defence. Article 75 a specifies that a relationship between superior and subordinate can exist with regard to foreign soldiers only in so far as this has been determined by Royal Decree or on behalf of the King by the Minister of Defence. Neither of these possibilities has ever been put into practice. Spiritual advisors (geestelijk verzorgers) (i.e. Catholic chaplains, Protestant ministers, humanistic counsellors, and rabbis) are not militair, and are appointed as civilians, although under the laws of war they are considered to be members of the armed forces. All violations of the laws and customs of war are adjudicated by the military chambers in first instance and on appeal, irrespective of whether the suspect is a soldier or a civilian (see below paragraph g, in fine). b. Relation to General Criminal Law The opening articles of the WMSr provide that in the application of the Military Code, the provisions of the Common Criminal Code law apply. The Common Criminal Code also applies to offences committed by soldiers which are not contained in the WMSr (Articles 1 and 2 WMSr). c. Military Criminal Courts Military courts are to dispense both military and common criminal law as regards soldiers. However, since 1991, these courts have basically been regular courts which deal with cases against soldiers, and some (i.e. the district courts and high courts) have a member of the armed forces on the bench of the court as a 'lay judge'. For this reason, and the reason that these courts apply not only common criminal law but also special military law, these courts are in legal parlance referred to as "military courts". Criminal cases against soldiers (militairen) are dealt with in first instance by the kantongerecht at Arnhem (cantonal court - for minor offences) or arrondissementsrechtbank (district court - for all other offences) at Arnhem, where military cases are concentrated. Appeals against judgements of the militaire kantonrechter can be made to the military chamber of the District Court Arnhem. Appeals against judgements in first instance of the district court can be lodged

Military Law in the Netherlands

631

with the military chamber of the Gerechtshof Arnhem. In revision the Höge Raad deals with all military criminal cases. The militaire kantonrechter is an unus iudex, and also criminal cases before the arrondisementsrechtbank can, depending on the seriousness of the offence, be dealt with by an unus iudex (who is then called militaire politierechter). The unus is always a civilian judge. The military chamber of the district court is composed of three members: two civilian judges and one military member. The military chamber of the Gerechtshof Arnhem is composed in the same manner. The Höge Raad has no military members. Military members of the courts are not members of the judiciary in the sense of the Constitution. The territorial competence of the military courts of Arnhem is unrestricted, unless the suspect is in the territory of the CZMCARIB; then the Court of First Instance of the Netherlands Antilles or Aruba is competent. This means that both the militaire kantonrechter and the military chamber of the District Court Arnhem can hold sessions abroad, as happens for the troops stationed in Germany. Also mobile courts can be established in areas where a state of emergency, uitzonderingstoestand, in the sense of Article 103 of the Constitution has been declared, or for trial outside the Netherlands.151 This is supposed to be done only under special circumstances. This presumably implies that those special circumstances may legitimise further restrictions on fundamental rights than would otherwise be the case. d. Special Rules with Respect to Legal Procedure and the Sanctions System The principle is that the ordinary Code of Criminal Procedure, Wetboek van strafvordering, applies in military cases, except where the Wet militaire strafrechtspraak (WMS) diverges there from (Article 1 (2) Wet militaire strafrechtspraak). One difference between the common procedure and the military procedure is that the Code of Criminal Procedure in normal cases applies only to the Netherlands, whereas in military cases the Wet militaire strafrechtspraak extends its operation also to the other countries of the Kingdom for reasons of uniformity, which is desirable because soldiers may be stationed and moved between the various countries of the Kingdom (e.g. between the Netherlands proper and the Dutch Antilles). As regards the investigation of criminal offences by soldiers, the Koninklijke Marechaussee is charged with the task of policing the armed forces with the attendant powers of investigation.152 Apart from this, commanding officers

151 152

Art. 10 WMS. Art. 6 (4) Politiewet 1993.

632

Leonard F. M. Besselink

have investigative powers when troops are outside the Kingdom and no other investigative authority is present.153 If the public prosecutor, officier van justitie, deems it necessary to prosecute a case, there shall first be a preliminary investigation which is conducted by a rechter-commissaris, who in military matters must be a member of a military chamber. Also the military member of a military chamber can be rechter-commissaris if the inquiry takes place mainly or entirely outside the Netherlands, or if the nature of the case is such that the president of the chamber (a civilian judge) deems it preferable to have it investigated by the military member. Such a soldier acting as rechter-commissaris does not have all the powers which a judge would have; in particular he cannot order the (temporary) deprivation of liberty of any person, because he is not a member of the judiciary (Article 29 (2) WMS). A suspect may be assisted not only by a barrister, but also by a military officer, except in revision at the Höge Raad, where officers cannot act as counsel. To the rule that the testimony of only one witness cannot be full proof, the WMS makes an exception with regard to declarations of a superior as to the violation of his order, factual insubordination against him, or mutiny against him (Article 31 (1) WMS). As regards justification of an offence, Article 31 (2) WMS reverses the burden of proof for a guard on duty who has committed an offence. The guard who invokes a justification is assumed to have acted lawfully unless the opposite is made plausible. The reason for this is the fact that the guard often acts on his own without the presence of other witnesses. In other respects the normal Code of Criminal Procedure applies. e. The Military Prosecutor Since 1991 the competent prosecutor is the officier van justitie at Arnhem (before the decision whether to prosecute was taken within the armed forces and there was a special military prosecution). The officier van justitie at Arnhem is a civilian and owes his special role in military matters to the fact that military criminal cases are concentrated at the courts in Arnhem. As stated above, in disciplinary cases he has no prosecuting role. However, he has an advisory role in cases of disciplinary appeal to court. /

Justification by Superior Orders

As we discussed above (see paragraph IV, 3) the WMT provides in Article 16 that a soldier does not act contrary to military discipline if the ordered conduct 153

Art. 59 WMS.

Military Law in the Netherlands

633

(gedraging, lit. behaviour) is unlawful or was in good faith considered to be unlawful by the soldier. The Military Criminal Code provides in Articles 131 and 132 that the soldier who disobeyed an unlawful order cannot be punished (131 WMSr); nor can he be punished if he thought it in good faith to be an unlawful order (132 WMSr). It is common understanding that Article 131 WMSr and Article 16 WMT in principle only grant the right not to obey an order, unless the carrying out of an order constitutes a criminal offence; in other words, there is a duty to disobey an order which if obeyed, would lead to a criminal offence. Before saying a few words about superior orders in relation to the laws of war and warfare, it should be pointed out once more that the lawfulness of an order includes its lawfulness under public international law. Thus, there is a fair amount of case law on the so-called SITE guards who refused to do guard duties on military sites where nuclear weapons were allegedly kept, and on the so-called "total objectors", totaalweigeraars, who refuse any cooperation with the armed forces and, therefore, do not wish to cooperate in proceedings with a view to having their conscientious objections recognised. The latter would let it come to the order to appear on the premises, which they would refuse. In all of these cases, the Höge Raad in highest instance (and the then Hoog Militair Gerechtshof) considered the relevant orders to be in agreement with general principles of international law, customary public international law, treaty obligations such as the UN Charter, the Non-Proliferation Treaty, the various Geneva Conventions and Protocols, the rules and principles of Nuremberg and Tokyo, the laws and customs of war and warfare, and other international humanitarian law.154 As regards the issue of superior orders in relation to the laws and customs of war, the relevant provision in the Laws of War Act ( Wet Oorlogsstrafrecht) is Article 10 (1): With regard to offences mentioned in Articles 8 and 9 [violations of the laws and customs of war], Articles 42 and 43 [the defence of superior orders and of carrying out of the laws] of the Wetboek van Strafrecht [Criminal Code] do not apply.155

154

HR 4 May 1981, NJ 1981/464; HR 29 November 1983, NJ 1984/599; HR 18 June 1985, NJ 1986/58; HR 27 May 1986, NJ 1987/413; HR 23 December 1986, NJ 1987/508; HR 24 March 1987, NJ 1988/82. 155

Art. 10 Wet Oorlogsstrafrecht: "1. Ten aanzien van de feiten, bedoeld in de artikelen 8 en 9, zijn de artikelen 42 en 43 van het Wetboek van Strafrecht niet van toepassing." Art. 42 Wetboek van Strafrecht [Criminal Code]: "A person who commits an offence in carrying out a legal requirement is not criminally liable." Art. 43 Wetboek van Strafrecht: "(1) A person who commits an offence in carrying out an official order issued by a com-

634

Leonard F. M. Besselink

Contrary to what the text of this provision seems to suggest, the Legislature merely intended to state that a superior order cannot justify the perpetration of one of the crimes intended in the Act. It did not wish to make it entirely impossible to plead the obedience in good faith of superior orders as a mitigating or exculpating circumstance, although the language of the provision suggests otherwise. This has been one of the two objections to the provision voiced in the academic literature. The other objection is that Article 10 (1) suggests an unjustifiable dualist approach to international law. In a monist view Article 10 (1) would allegedly be superfluous, at least in the sense in which it was intended. There is some case law on the superior orders exemption of the Bijzondere Raad van Cassatie, Special Court of Revision, which dealt with war crimes (in the broadest sense of the word) after the Second World War. In the Ziihlke case,156 the Bijzondere Raad van Cassatie considered the meaning of Article 8 of the IMT Nuremberg Charter, which provides that superior orders do not free the defendant from responsibility, but may be a mitigating circumstance with a view to punishment. The Bijzondere Raad held that 'this Article provides nothing for which the laws of the Netherlands would have to yield as lower ranking law.' It stated that Article 8 referred only to major war criminals and did not express a principle of public international law of wider scope; "the court is therefore called to judge the appeal made by Ζ to superior orders (ambtelijk bevel) by the standards of written and unwritten law prevailing in the Netherlands". In another case, the Bijzondere Raad van Cassatie judged of a low-ranking German policeman who had carried out an order to set an object on fire, that his awareness of the criminal character of his act should not have been judged present.157 g. Sanctions for Non-Compliance with International Humanitarian Law This is mainly done in the Laws of War Act, Wet Oorlogsstrafrecht, which we mentioned above. This act is - due to its legislative history - legally a very complex instrument, which has in recent years given rise to various quite fundamental legal questions. The Act creates a number of offences, but is also concerned petent authority is not criminally liable. (2) An official order issued without authority to do so (ultra vires), does not remove criminal liability unless the order was assumed by the subordinate in good faith to have been issued with authority to do so and he complied with it in his capacity as subordinate." 156

BRvC, 6 December 1948, NJ 1949, 85.

157

BRvC, 6 July 1949, NJ 1949, 540.

Military Law in the Netherlands

635

with determining jurisdiction over these and various other types of offences during war-time which are defined in other acts, such as the acts implementing the genocide and torture treaties. For the purpose of sanctioning non-compliance with the international humanitarian law, Articles 8 and 9 are important. Article 8 provides that "the person who is guilty of violating the laws and customs of war" shall be punished with imprisonment of a maximum which varies between 10, 15, 20 years or life long imprisonment, or a fine of the highest category.158 Article 9 provides that the same sanctions apply to the person who intentionally allows a subordinate to commit a crime in the sense of Article 8.159 These provisions go further than is strictly required to the extent that they make not only serious violations, but all violations of international humanitarian law an offence; also they are in national legal terms all considered to be a serious offence, misdrijf. Moreover, the expression "the laws and customs of war" comprises both violations of international humanitarian law stricto sensu and the law concerning means of warfare. As to jurisdiction, there are two contradictory provisions: one which seems to restrict the scope of the Laws of War Act, international armed conflicts, 158 Art. 8 Wet Oorlogsstrafrecht: "1. Hij die zieh schuldig maakt aan schending van de wetten en gebruiken van de oorlog, wordt gestraft met gevangenisstraf van ten hoogste tien jaren of geldboete van de vijfde categorie. 2. Gevangenisstraf van ten hoogste vijftien jaren of geldboete van de vijfde categorie wordt opgelegd: I o . indien van het feit de dood of zwaar lichamelijk letsel van een ander te duchten is; 2°. indien het feit een onmenselijke behandeling inhoudt; 3°. indien het feit inhoudt het een ander dwingen iets te doen, niet te doen of te dulden; 4°. indien het feit plundering inhoudt." 3. Levenslange gevangenisstraf of tijdelijke van ten hoogste twintig jaren, of geldboete van de vijfde categorie wordt opgelegd: 1 . indien het feit de dood of zwaar lichamelijk letsel van een ander tengevolge heeft dan wel verkrach ting inhoudt; 2°. indien het feit inhoudt geweldpleging met verenigde krachten tegen een of meer personen dan wel geweldpleging tegen een dode, zieke of gewonde; 3°. indien het feit inhoudt het met verenigde krachten vernielen, beschädigen, onbruikbaar maken of wegmaken van enig goed, dat geheel of ten dele aan een ander toebehoort; 4°. indien het feit, in het voorgaande lid bedoeld onder 3° of 4°, wordt gepleegd met verenigde krachten; 5°. indien het feit uiting is van een politiek van stelselmatige terreur of wederrechtelijk optreden tegen de gehele bevolking of een bepaalde groep daarvan; 6°. indien het feit inhoudt een schending van een gegeven belofte, of een schending van een met de tegenpartij als zodanig gesloten overeenkomst; 7°. indien het feit inhoudt misbruik van een door de wetten en gebruiken van de oorlog beschermde vlag of teken dan wel van de militaire onderscheidingstekenen of de uniform van de tegenpartij. 159 Art. 9 Wet Oorlogsstrafrecht: "Met gelijke straf als gesteld op de in het voorgaande artikel bedoelde feiten wordt gestraft hij die opzettelijk toelaat, dat een aan hem ondergeschikte een zodanig feit begaat."

636

Leonard F. M. Besselink

international operations, and civil wars in which the Netherlands is involved,160 whereas another provision seems to enunciate the principle of universal jurisdiction for violations of the laws and customs of war.161 In 1997, the matter was decided in favour of the universality principle on the basis of the legislative history - basically the insertion of Articles 3, 8 and 9 at a very late stage in the legislative process.162 In the same case, the Höge Raad also decided the controversial issue of which court is competent to hear cases under Article 8 to the advantage of the military courts, instead of the normal criminal courts, even when it concerns a civilian. h. Ratification of the Rome Statute of the International Criminal Court The Netherlands ratified the Rome Statute on 7 July 2001. It has been approved by the States General under Article 91 (3) with a two thirds majority.163 The Rome Statute was judged to diverge from the provisions of the Constitution on the immunity of various holders of political office, i.e. the King, ministers, and Members of Parliament. The Netherlands has made no reservations to the Statute of the ICC.

VII. Regulations Governing Guard Duties 1. Powers of Guards Towards Military Personnel as well as Towards Civilians As we indicated above, the general rules regarding guard duties concern the functional superiority of guards in the execution of their tasks. Also there is the exceptional provision on the value to be attached to the testimony of a guard in criminal cases, which implies a reversal of the burden of proof (Article 31 (2) WMS). There are no further rules concerning guards, except legislation on the use of force by guards.

160

Art. 1 Wet Oorlogsstrafrecht as transpires clearly from the legislative history, and as confirmed by the Höge Raad 11 november 1997, NJ 1998, 463. 161 Art. 3 sub I o Wet Oorlogsstrafrecht, which provides that the Netherlands criminal law applies to "every person who perpetrates one of the crimes defined in Arts. 8 and 9". 162

Höge Raad 11 November 1997, NJ 1998, 463.

163

Staatsblad 2001, 343.

Military Law in the Netherlands

637

2. The Rules Concerning the Carrying and the Use of Arms and other Military Equipment A guard's duties with regard to the use of arms are at present codified in the Rijkswet geweldgebruik defensie-personeel in de uitoefening van de bewakings- en beveiligingstaak (Act for the Realm on the Use of Force by Defence Personnel in the Exercise of Guard and Security Tasks).164 It states that in the course of the lawful exercise of military guard duties and security tasks, a member of the armed forces and personnel in the service of the Ministry of Defence may resort to the use of violence if this is justified, bearing in mind the dangers of the use of violence, and only if the objective cannot be attained in any other manner. The use of force must be preceded by a warning, if possible. The exercise of the power to use force must be moderate and proportional to the objective. The competence to use force applies only to objects indicated by the Minister of Defence.165 An algemene maatregel van bestuur (order in council) regulates the use of force in the sense of the Act. This order in council is the Besluit geweldgebruik defensiepersoneel in de uitoefening van de bewakings- en beveiligingstaak (Decree on the Use of Force by Defence Personnel in the Exercise of Guard and Security Tasks). This decree defines the use of force as "any compelling power of more than slight significance employed against persons or objects" and "includes the threat of force" (Article 1 (1 sub c) and 1 (2)). It allows the use of force only by those who have the lawful competence to exercise the relevant means and who have been trained in the use of that means (Article 3). It determines that the only means of force allowed are: physical force, a firearm, a firearm as a thrusting or stabbing weapon, a truncheon, a patrol dog, a water cannon, or handcuffs (Article 6). 164 165

Staatsblad 1999,12.

This has been done in a ministerial Decree for the Realm, ministerieel rijksbesluit, of the Minister of Defence, 10 November 1997, No. CWW88/014 97003315 (Stcrt. 1997, 220). Art. 1 of the Decree concerns objects with a permanent character. These are mentioned in an appendix to the Decree. These include, amongst others, barracks and premises, open terrain, and certain buildings, both in the Netherlands and in the Netherlands Antilles and Aruba. They also include certain mobile weapons systems, aircraft, and ships. Art. 2 concerns objects which require guarding and security measures of a nature that require the competence to use force only temporarily (i.e. no longer than 12 weeks). Examples might be ammunition stored temporarily in a harbour, a temporary command post, or a crashed airplane. The legal basis of this ministerial decree was Art. 1 sub a of the Besluit geweldgebruik krijgsmacht in de uitoefening van de bewakings- en beveiligingstaak. This provision has, however, been moved to Art. 1 (3) of the Rijkswet. The explanatory memorandum of the new Besluit states that the ministerial decree must now be considered to be based on the Rijkswet (Staatsblad 2000, 337, p. 8). However, no provision to this effect can be found in the Rijkswet or Besluit.

638

Leonard F. M. Besselink

The use of force must always be preceded with a warning - in the case of an aimed shot, a warning shot which should avoid harm to persons or goods (Article 5). The least forceful means possible must be used, and the attendant risks must be restricted as much as possible (Article 7). The use of a water cannon is allowed only at the explicit order of a superior (Article 6 (3)), whereas the use of a patrol dog is permitted only under the supervision of a special officer (hondenbegeleider) (Article 6 (2)). When a guard acts in the presence of a superior, he may not use force unless at the previous and explicit order of this superior. The superior is to indicate the means of force to be used (Article 4). There are special instructions as to the use of firearms (Articles 9 to 11) and the cases in which handcuffs can be used (Article 12). The use of firearms is allowed only against a person who may reasonably be assumed to carry firearms which are ready for use and which will be used against persons, or who will use other life threatening violence against persons. Firearms can also be used against a person who may reasonably be assumed to be committing a serious offence against an object which involves a vital interest of the armed forces (Article 9). In using firearms, three conditions must be satisfied: serious injuries or worse must be avoided to the extent possible, if possible, shots should be aimed at the legs, and risks for third persons must be avoided to the extent possible (Article 10). A person may raise firearms only if a situation in the sense of Article 9 may reasonably be expected to arise; as soon as it no longer occurs, the weapon must be lowered (Article 11). The Decree does not apply to international armed conflict and internal conflict in the sense of the common Articles 2 and 3 of the Geneva Conventions and the Additional Protocol's Article 2. In such cases the instructions of the Decree "can be an obstacle to a response which is adequate to the circumstances."166 Then those instructions apply which are formulated for the specific circumstances of the conflict, e.g. rules of engagement. The official explanatory memorandum to the Decree specifies that normally the regulations of the Decree will apply only within the Kingdom. The extraterritorial effect of these rules (their applicability to Dutch soldiers abroad) depends on the circumstances. The applicable instructions on the use of force are determined when the decision to deploy abroad is taken, but the form this takes depends on the circumstances. The general principle of public international law is that the law of the host country is to be observed. However, by treaty agreement, the rules of the sending state may apply. Special instructions as formulated in rules of engagement can also be made by the competent authority, as in UN peace missions. When the government decides to participate in an

166

Explanatory Memorandum to the Decree, Staatsblad 2000, 337, p. 9.

Military Law in the Netherlands

639

international operation, the rules of engagement which result from the mandate of the international mission are reviewed for their conformity with the underlying principles of the Rijkswet and Besluit, especially the principles of proportionality and subsidiarity.167 It is the view of the government that if no agreements have been made regarding the use of force, which may happen in the cases of exercises or visits to harbours, the military who are outside the Kingdom may only use the right to self defence allowed under public international law for the protection of persons or vital objects within the boundaries set by the principles of subsidiarity and proportionality.' 68 For the use of force in emergency situations in which, pursuant to the Oorlogswet Nederland, military authorities exercise broad powers of regulation and administration, there is a separate instruction. 169

3. Performance of Guard Duties by Soldiers of Foreign Armed Forces We have described the possibility of bi-national guards in the 1 (German/ Netherlands) Corps in accordance with Article 10 of the relevant Convention (see above paragraph V, 2). This will lead to a change in the legislation on the use of force by guards of military objects in order to grant foreign soldiers the same competence as Dutch soldiers on guard. Formally, the Rijkswet geweldgebruik defensie-personeel will be replaced by a new Rijkswet geweldgebruik bewakers militaire objecten, Act for the Realm on the use of force by guards of military objects.170 Substantively, the only change is that foreign soldiers will acquire the powers to use force under the circumstances described in the Act of Parliament and the decree based thereon. Under the present Rijkswet only "militairen" (soldiers) and designated civilians are mentioned as the ones to use legitimate force. The bill extends the Act's scope to soldiers who are members of foreign armed forces who have been so designated by the Minister of Defence and who, for the purpose of guard and security duties, are under the command of a member of the Dutch armed forces or a civilian of the Ministry of Defence. The designation is only possible pursuant to a treaty or decision of an international organisation. 171

167

Staatsblad 2000, 337, pp. 7 et seq.

168

Idem, p. 8.

169

Besluit geweldgebruik bij de uitoefening buitengewone bevoegdheden, Staatsblad 1997,173.

170

Kamerstukken 27 624.

171

Kamerstuk 27 624, No. 1-2, Art. 1 (1).

640

Leonard F. M. Besselink

VIII. Legal Reforms with Respect to Multinational Operations and Structures 1. Pertinent Legislation Since 1990, two emendations of legislation were prompted by the increased international activity of the armed forces. Firstly, the Constitution was revised in July 2000 to include a number of specific references to the "maintenance and promotion of the international rule of law" and to create a duty of the Government to provide information to Parliament on decisions to participate in international operations. Secondly, in 1999, a revision of the Military Disciplinary Code and the Military Criminal Code from the beginning of the 1990s was evaluated. In this framework some changes were made in the light of the experience in international operations. We first discuss the amendments to the Constitution.172 The amendment of the Constitution specified the "maintenance and promotion of the international rule of law" as a task of the armed forces in Article 97: 1. For the purpose of the defence and the protection of the interests of the Kingdom, as well as for the maintenance and promotion of the international rule of law, there shall be armed forces. The reasoning behind the insertion of the new provision was that the existent provisions were too general to cover international military cooperation. A general provision on the policy objective of developing the international legal order existed, but it did not refer to any particular role of the armed forces in this respect. The other provisions mentioned the defence of the independence and territorial integrity of the Realm and the State's interests.173 This, however, has not prevented the active engagement of troops in international conflicts which did not immediately affect the independence of the Realm. The extent to which the formulation contained in the new Article 97 really grants competence to involve the armed forces in international operations is questionable, as it seems primarily merely to formulate the ends for which the armed forces exist. 172

For a discussion of the earlier proposals for reforming the constitutional provisions on defence, see M. J. J. Van den Honert, De regering heeft het oppergezag over de krijgsmacht, (1990) MRT, pp. 10-22; on the present provisions still pending in Parliament, see E. Soetendal, Boeiend en geboeid, enige beschouwingen over de wijzigingen van de defensiebepalingen in de Grondwet, (1997) MRT, pp. 285 297. 173 In the pre-July 2000 version, Art. 97 (1) read: "All Dutch nationals who are capable of doing so shall have a duty to cooperate in maintaining the independence of the State and defending its territory"; and Art. 98 (1) stated: "To protect the State's interests, there shall be armed forces, which shall consist of volunteers, and which may also include conscripts."

Military Law in the Netherlands

641

Previously, there existed legislation which in principle enabled the involvement of draftees in international operations under the aegis of the UN. The Höge Raad decided that the existent general legislative provisions prevented the sending of draftees against their will to such operations (UNIFIL-judgement). The relevant legislation has been superseded by a Framework Act on Military Service (Conscription) [Kaderwet Dienstplicht]. This Framework Act suspends the calling into active service of conscripts, and restricts the calling into active service - under normal circumstances - to active service for the exclusive purpose of training exercises (Article 18 Kaderwet).174 This implies that, under such circumstances, a draftee cannot be sent abroad (for purposes other than those of training exercises). This is confirmed by the legislative history of this provision. An amendment to the effect that draftees could also be sent abroad under normal circumstances was rejected.175 Thus, sending conscripts abroad is allowed only under special circumstances. The calling into active service under these special circumstances takes place by Royal Decree, which is accompanied by a bill introduced in Parliament for confirmation of the decree. There is no specific legal basis for sending professionals abroad. There is only the general basis in Article 19 (2) of the Algemeen militair ambtenarenreglement (Amar), which imposes the duty to fulfil the function assigned to him. Presumably, professionals are understood to volunteer to any military service. As we already noticed above, the Centrale Raad van Beroep, the court of highest instance dealing with the legal status of soldiers, has deemed even the previous constitutional provisions - which did not yet include a reference to the maintenance of international legal order - sufficient for sending them against their will on UN missions; refusing to do so is a reason for dismissal from the service.176 The other constitutional provision which was introduced as Article 100 concerns the position of the Government towards Parliament. It states that the Government shall provide prior information to the States General concerning the deployment or making available of the armed forces for the maintenance or promotion of the international rule of law.177 This includes providing informa-

174 Art. 18 (1): "De dienstplichtige is in gewone omstandigheden uitsluitend verplicht tot het vervullen van werkelijke dienst voor opleiding en oefening alsmede voor herhalingsoefeningen." 175

Kamerstuk 24245, No. 12; Handelingen TK 1995-1996, 91-6044.

176

Centrale Raad van Beroep, 7 September 2000, (2000) TAR, p. 1444; commented and criticised in L. F. M. Besselink, De Constitutie en uitzending van militairen voor vredeshandhaving, (2001) TAR, pp. 295-306. 177 Previously, Art. 100 read: "Foreign troops shall not be employed other than pursuant to an Act of Parliament." This was understood to refer to the engagement of foreign nationals as mercenaries or as a foreign legion. The provision has not been retained.

642

Leonard F. M. Besselink

tion concerning the engagement or making available of the armed forces for humanitarian assistance in cases of armed conflict. We already discussed this provision above in paragraphs I and II, 2, c. In 1990, a general revision of the Military Disciplinary Code and Military Criminal Code took place. In 1992/1993 an evaluation of the revised Codes was undertaken, which led to a number of changes taking effect in 1999.178 Some of these concerned the possibilities of investigation and prosecution and punishment of infringements of military criminal and disciplinary order in international contexts. This refers, for instance, to the time limits within which an act can be prosecuted (extended to 60 days, see the new Article 53 (3) WMT). The reason for this provision was that in operations in which only a small contingent or even only some individual officers or soldiers participate, there are no persons with investigative and/or prosecuting powers in the contingent, and these have to be flown in.179 Another new provision concerned the possibility to double the normal fines when on missions abroad. (Article 43 (3 and 4) WMT). This is because some other disciplinary measures cannot be effectively imposed. This is for instance the case when the prohibition to leave the premises is not a realistic sanction, due to, for example, a suspension of normal working time limits which is usual during international operations; also the supplementary premiums on wages which soldiers earn by being on a mission abroad, reduces the deterrent effect of the standard level of fines.180 The duty to comply with service regulations (dienstvoorschriften, see below) has been broadened in cases of international operations in the Disciplinary Code (Article 18 (2) WMT). Previously, off-duty service-members serving abroad had to comply with service regulations only when special circumstances so required. Finally, a new Article 5 a WMT extended the disciplinary rules with which Dutch soldiers have to comply, to acts perpetrated against foreign military personnel and military objects. It does so by stating that, during the time that a Dutch soldier forms part of an international military cooperative entity (internationaal

militair samenwerkingsverband

) the definition of "soldier" (militiar)

includes also the foreign soldier belonging to that international military entity; 178

See on this report, D. B. den Hoedt, Het militaire tuchtrecht, theorie om praktijk, (1993) MRT, pp. 177-193; idem, Evaluatie bedoelingen, (1993) MRT, pp. 283 et seqq.; P. Th. Hebly, Evaluatie van een evaluatie, naar aanleiding van een rechtsvergelijking van het militair tuchtrecht van Nederland en Duitsland, (1993) MRT, pp. 273-283. 179 See Toelichting bij Nota van wijziging [Explanatory Statement to the Memorandum of amendment], 25 454, No. 6. 180

Tweede Kamer, 1996-1997, 25 454 (R1595), No. 3, p.10.

Military Law in the Netherlands

643

under such circumstances the definition of "armed forces", krijgsmacht, also includes the relevant international military cooperative entity.

2. Probability of Future Reforms Except for pending legislation on the use of violence by multinational guards, no enactment of special legislation pertinent to multinational military units or operations is envisaged at the moment. There has been a suggestion that the procedure of Article 100 should lead to an Act of Parliament to regulate the moment and manner in which information under this provision is to be provided to the Houses of Parliament (Bakker Committee),181 but this has not been followed up so far. At the moment most criteria for sending troops abroad are governed by a set of guidelines laid down in a letter of the Government to the Lower House, the so-called Toetsingskader uitzending strijdkrachten [Framework for Decision-making for Sending the Armed Forces Abroad], which has recently been amended in the light of recent experience.182 However, the formalisation of this framework, which extends beyond the scope of Article 100 of the Constitution, into legislation has not been pursued further, either.

3. Academic Discussion The law concerning the armed forces is not considered a field of intense academic study outside the circle of those immediately involved with the armed forces. The exception is the special chair in military law at the University of Amsterdam, established by the law faculty under the aegis of the Koninklijke Vereniging ter Beoefening van de Krijgswetenschap [Royal Society for the Practice of Military Science], for which purpose this society receives a subsidy from the Ministry of Defence.183 In general one may say that the only more widespread academic discussion which has arisen occurred during the period of the debates on the deployment of the Pershings; after 11 September, perhaps the academic interest in the legal aspects of international military operations will revive. There is, however, a relatively broad interest among international lawyers 181

Report of the Tijdelijke Commissie besluitvorming uitzendingen, (Bakker Committee), Tweede Kamer, vergaderjaar 1999-2000, 26 454, No. 7-8, pp. 494 et seq., recommendation 11 to 18; see on these recommendations Volkskrant, 30 September 2000, p. 15. 182 183

Kamerstukken II 1994/95, 23 591, No. 5; revised 2001/2002, 23 591, No. 7.

See Kamerstuk 26 800 X, No. 3, p. 26, d.d. 21 September 1999; and Bijlage [appendix] 6, of the Budget for Defence 2001, Kamerstuk 27 400, No. 3, p. 13.

644

Leonard F. M. Besselink

in humanitarian law and more recently also criminal lawyers, due to the establishment of the various international tribunals. The issue of multinational military cooperation in the form of multinational military units has drawn relatively little interest in academic circles.184 This may also be caused by the fact that this form of military cooperation is based on agreements which have not been published and are - sometimes unjustifiably - considered to be mere administrative agreements which do not create legal obligations under public international law. The involvement in multinational units and operations in U N cum NATO contexts has drawn political attention, but there has been relatively little involvement by lawyers.

IX. Select Bibliography 1. Pertinent Legislation Primary legislation and most of the secondary legislation which is officially published can be found at the internet-site www.overheid.nl/wetten/index.html. However, many ministerial regulations of the Minister of Defence and state secretary for Defence are not officially published. Standard printed legislation is in the following two titles: Militair straf-, strafproces- en tuchtrecht: Wetboek van Militair Strafrecht; Wet Militair Tuchtrecht; Wet Militair Strafrechtspraak. Edited by G. L. Coolen. 2000, 1 Ith ed., up to date to 1 January 2000, Deventer: W. E. J. Tjeenk Willink. Series: Nederlandse wetgeving: editie Schuurman & Jordens; vol. 81, 315 p. ISBN: 90-271-5142-3 Militair ambtenarenrecht; Militaire ambtenarenwet 1931; Wet voor het reservepersoneel der krijgsmacht; Wet immunisatie militairen. W. M. Schwab (ed.), 2002, 5th ed., updated until 15 November 2001, Alphen aan den Rijn: Kluwer, Series: Nederlandse wetgeving: editie Schuurman & Jordens; vol. 177, 358 pp., ISBN: 90-14-07509-X The parliamentary history of primary legislation in the field of military disciplinary and criminal law is printed in: Parlementaire geschiedenis van het militaire straf-, strafproces- en tuchtrecht / G. L. Lindner, Volume I: Militair tuchtrecht; Volume II: Militair strafrecht;Volume III: Militair strafprocesrecht. 1992. Arnhem: Gouda Quint, 233 + 244 + 226 pp. 2. Books and Articles A main text on military disciplinary and criminal law is: Militair straf- en tuchtrecht, Th. W. van den Bosch et al., 1990-°°, Arnhem: Gouda Quint, loose-leaf 184 The exception is a thematic issue of the Militair Rechtelijk Tijdschrift of 1995, though mainly with contributions written by practitioners.

Military Law in the Netherlands

645

The most recent standard textbooks are: Coolen, G. L., Militair tuchtrecht, 3rd rev. ed., Zwolle: Tjeenk Willink, 2000. XVI, 259 pp. Coolen, G. L., Militair straf- en strafprocesrecht, 3rd ed., Zwolle : W.E.J. Tjeenk Willink, 2000. XVII, 242 pp. Coolen, G. L., Humanitair oorlogsrecht, Deventer: W. E. J. Tjeenk Willink, 1998. XVI, 211 pp. Coolen, G. L., Hoofdzaken van het militaire ambtenarenrecht, 4th ed., Deventer: Tjeenk Willink, 2001. XVII, 280 pp. Most articles on military law and relevant military case law is published in: Militair-Rechtelijk tijdschrift, published since 1905 by respectively the Ministry of the Navy, the Ministry of War and since 1959 by the Ministry of Defence (Ministerie van Defensie), The Hague Staatsuitgeverij. It appears 10 times a yearly. [Usually abbreviated to MRT] A digest of case law in military criminal law published in the MRT is: Uitspraken militair strafrecht 1923-1979, gepubliceerd in het Militair-rechtelijk tijdschrift. Collected by Th. W. van den Bosch, A.E.L.M. Fontijn et al. 1981, Zwolle: Tjeenk Willink. viii, 358 ρ p. ISBN: 90-271-1784-5

Chapter 10 Military Law in the Republic of Poland Michal Kowalski 1

Table of Contents I. The Historical and Political Background of the Military Law System . . . . 1. Parliamentary Control and Political Background of the Polish Military Law System 2. Democratic Control and Rights and Duties of Soldiers a. The Constitution b. The Government c. The Public II. Basic Rules Concerning the Use of Armed Forces 1. The Mission of the Armed Forces 2. Permissible Operations 3. Limitations on Operations Undertaken Jointly with the Armed Forces of Another Country III. Constitutional Powers 1. The Position of the Head of State 2. The Powers of the Government 3. The Participation of Parliament in the Decision to Deploy the Armed Forces 4. The Functions of the Minister of Defence 5. The Role of the Military Leadership 6. Parliamentary Control a. The Parliament's Powers to Control the Armed Forces b. Special Forms of Parliamentary Control Over the Military, Ombudspersons c. Court of Auditors and Comparable Institutions IV. The Structure of the Armed Forces 1. The Armed Forces and their Administration 2. Involvement of the Civilian Administration in the Process of Procurement of Material and Supplies V. Soldiers' Rights and Duties 1. Restrictions of Fundamental Rights of Soldiers a. General Aspects b. Political Neutrality of Soldiers c. Freedom of Association 1

Dr., University of Krakow.

649 649 652 652 653 654 655 655 656 658 660 661 667 668 669 670 671 671 672 673 673 673 674 674 674 674 676 680

648

VI.

VII.

VIII.

IX.

Micha! Kowalski d. Conscientious Objection e. Equal Treatment f. Other Fundamental Rights and their Restrictions 2. Legal Obligations of Soldiers 3. The Power of Command and the Duty to Obey 4. Social Rights of Soldiers and their Families 5. Rules Governing Working Time a. Working Time and Compensation for Overtime b. Holidays and Special Leaves 6. Legal Remedies, in Particular Rights to File a Complaint a. General Right to File a Complaint b. Complaint to the Ombudsperson and the Right to Petition c. Complaint about the Behaviour of Fellow Soldiers 7. Rights of Institutional Representation The Relationship of the Superior to Subordinate Personnel 1. Legal Rules Concerning the Relationship between Superior and Subordinate a. The Position of the Superior b. The Duties of the Superior c. The Use of Force to Implement Orders 2. Subordination of Soldiers to the Command of a Superior of Foreign Armed Forces 3. Service Regulations and their Legal Nature Sanctions 1. Disciplinary Law a. Disciplinary Power and Disciplinary Law, its Purpose and its Relation to Criminal Law b. Disciplinary Measures c. Disciplinary Law and the European Convention on Human Rights . . d. The Disciplinary Procedure and Legal Remedies e. Measures of Commendation 2. Military Criminal Law a. Military Criminal Law and its Relation to General Criminal Law . . . b. Military Criminal Courts and their Relation to Civilian Courts . . . . c. Special Rules with Regard to Legal Procedure and the Sanctions System d. The Military Prosecutor e. Justification by Superior Orders f. Sanctions for Non-Compliance with International Humanitarian Law g. Ratification of the Rome Statute of the International Criminal Court Regulations Governing Guard Duties 1. Powers of Guards towards Military Personnel as well as towards Civilians 2. Performance of Guard Duties by Soldiers of Foreign Armed Forces . . . 3. The Rules Concerning the Carrying and the Use of Arms and other Military Equipment Legal Reforms with Respect to Multinational Operations and Structures . . 1. Pertinent Legislation 2. Probability of Future Reforms 3. Academic Discussion

681 681 682 682 683 684 686 686 686 687 687 688 689 690 693 693 693 694 694 695 695 696 696 696 697 698 698 699 699 699 700 700 701 701 702 702 702 702 704 704 705 705 706 706

Military Law in the Republic of Poland X. Select Bibliography . . 1. Pertinent Legislation 2. Books and Articles a. Books b. Articles

649 706 706 709 709 710

I. The Historical and Political Background of the Military Law System 1. Parliamentary Control and Political Background of the Polish Military Law System The first Polish Constitution of 3 May 1791 stated in its Article XI: "The nation bears a duty to defend itself from attack and to safeguard of its integrity. Therefore all citizens are defenders of the national integrity and liberties. The army is nought but a defensive force drawn and ordered from the general force of the nation. The nation owes reward and esteem to its army because the army dedicates itself solely to the nation's defence. It is the army's duty to protect the nation's borders and general peace, in a word, to be its strongest shield. In order to ensure that it fulfils this task unfailingly, it shall always remain in obedience to the executive authority, in accordance with the provisions of law, and shall swear an oath of fidelity to the nation, to the King, and to the defence of the national Constitution. Thus, the national army may be used for the general defence of the country, for the safeguarding of fortresses and borders, or in aid of law, if any not be obedient to its execution."2 What is important is that the term 'nation' in this sense comprised all members of the national community and was not limited to the nobility (szlachta).3 The

2 'Naród winien jest sobie samemu obronç od napasci i dia przestrzegania calosci swojej, wszyscy przeto obywatele s^ obroñcami calosci i swobód narodowych. Wojsko nie innego nie jest, tylko wyci^gniçta sila obronna i porz^dna ζ ogólnej sity narodu. Naród winien Wojsku swemu nagrodç i powazanie za to, iz siç poswiçca jedynie dia jego obrony. Wojsko winno narodowi strzezenie granic i spokojnosci powszechnej; slowem winno byc jego najsilniejsz^ tarez^. Aby przeznaczenia tego dopelnilo nieomylnie, powinno zostawac cingle pod poshiszeñstwem wladzy wykonawczej, stosownie do opisów prawa, powinno wykonac przysiçgç na wiernosc narodowi i królowi i na obronç konstytucji narodowej. Uzyte byè wiec wojsko narodowe moze na ogólna kraju obronç, na strzezenie fortec i granic, lub na pomoc prawu, gdyby kto egzekucyi jego nie by! poshisznym'; translation by Ch. Kasparek, PNCC Studies 1982, vol. 3, pp. 45-58. 3

J. Bardach, B. Lesnodorski, M. Pietrzak, Historia ustroju i prawa polskiego [History of the Polish Political System and Law] (Warszawa, 1993), at p. 309.

650

Michal Kowalski

1791 Constitution was intended as the basis for the general reform of the state including the military. However, the intervention of neighbouring states and consequent partitions led to Poland's disappearance from the political map of Europe for more than a hundred years. The revival of a sovereign Polish state (the Second Republic) took place in 1918. The temporary constitutional basis was established in a Decree of 22 November 1918, which created the office of Temporary Chief of State (Tymczasowy Naczelnik Panstwa) with legislative and executive powers. In February 1919 the Temporary Chief of State transferred his powers to the democratically elected Constituent Assembly (Sejm Ustawodawczy). The Constituent Assembly established temporary constitutional principles in its resolution of 20 February 1919, known as the 1919 Little Constitution. Power was concentrated in the Constituent Assembly, the primary aim of which was to adopt a constitution. The executive powers were exercised by the Chief of State and the Government, which were dependent on the Constituent Assembly. The Constitution was adopted on 17 March 1921, and introduced a parliamentary system. The Parliament enjoyed broad legislative and supervisory competencies. It was to elect the President, who was the Head of State, and the Council of Ministers. All acts of the President had to be countersigned by the Prime Minister and the relevant cabinet minister. The political system established by the 1921 Constitution did not function well in Polish political practice of that time. It led to Marshal Józef Pilsudski's coup of May 1926, and to subsequent amendment of the 1921 Constitution, significantly strengthening the role of executive authorities. It resulted in practice in the marginalisation of Parliament's role. This practice was formalised in the new Constitution of 23 April 1935, which established a political system based on the principle of concentration of state powers in the office of the President, who was elected in a quasi-democratic procedure. The political system introduced by the 1935 Constitution may be characterised as authoritarian. 4 The position of the armed forces in the constitutional order of the Second Republic generally reflected the evolution of the political system. The President was the Chief of the Armed Forces and exercised his supervision through the Minister of Military Affairs and - after 1926 - also through the General Inspector of the Armed Forces (Generality Inspektor Sil Zbrojnych). The Minister of Military Affairs commanded the armed forces in peace-time. The General Inspector of the Armed Forces was an officer nominated to be the Commander-in-Chief in war-time. He was responsible for the preparation of the armed forces for war. From 1926 until his death in 1935, Józef Pilsudski exercised both

4

Ibid., pp. 472-508.

Military Law in the Republic of Poland

651

functions. After 1926, many officers did "double duty" in state administrative functions.5 The armed forces of the Second Republic generally enjoyed high prestige and public confidence. In 1945-1989 Poland was a totalitarian state under Soviet domination. The Polish People's Army (Ludowe Wojsko Polskie) was dominated and controlled by the ruling communist party. Also, as a part of the Warsaw Pact structure, it was dependent on the command of the Soviet Red Army. The Polish People's Army was used by the Polish communist authorities against the people during protests against the communist regime in 1956 and 1970. It also played the major role in introducing martial law in 1981. However, there is some evidence that some of the Polish troops would have opposed the Red Army if a Soviet intervention had taken place in 1956. Also, the reaction of some Polish troops to the possibility of Warsaw Pact intervention in Poland in 1980/81 is believed to have been uncertain. It should be noted that the Polish People's Army was not generally perceived by the public as an instrument of the communist oppression. The participation of Polish armed forces in international peace operations began in 1953, and the tradition is being continued by the armed forces of the fully independent and democratic state. Since 1953, over 40,000 Polish soldiers have participated in almost 50 international peace operations. On the other hand, the participation of the Polish People's Army in the Warsaw Pact intervention in Czechoslovakia in 1968 should also be taken into account in this context. As mentioned above, the conversion of the political system - from totalitarian to democratic - in 1989 led to substantial changes of the old constitutional order based on the Polish People's Republic Constitution of 22 July 1952. The changes were necessary in order to provide a legal framework for a modern democratic state, which includes the primary principle of democratic accountability of the armed forces, which did not exist in the Polish People's Republic. Introducing the principle of civilian control over the armed forces in the 1990s was a difficult process, but was accelerated by Poland's accession to NATO. Until the adoption of the Constitution of 2 April 1997,6 the constitutional order of the Third Republic was governed first by the 1952 Constitution (amended many times between 1989 and 1992, resulting in the restoration of the principle of the nation's supreme power, the introduction of the principle of a de5 6

J. Bardach, supra n. 2, pp. 519-520.

Konstytucja Rzeczpospolitej Polskiej ζ dnia 2 kwietnia 1997 r. [Constitution of the Republic of Poland of 2 April 1997], Journal of Laws 1997, No. 78, item 483; for English translation by A. Pol and A. .Caldwell see , as for 1 September 2001.

652

Micha} Kowalski

mocratic state governed by the rule of law, etc.), and subsequently by rules introduced by the Constitutional Statute of 17 October 1992, concerning mutual relations between legislative and executive powers, known as the 1992 Little Constitution. This document did not repeal the provisions of the 1952 Constitution. Unlike the 1997 Constitution, the 1992 Little Constitution imposed on the President the general management of the policies concerning internal and external security and foreign affairs. It implied, among other things, that the President played a crucial role in appointing the Minister of Defence, as well as the Minister of Foreign Affairs and the Minister of Interior. However, it was the Council of Ministers which was the main executive body.

2. Democratic Control and Rights and Duties of Soldiers a. The

Constitution

According to Article 26 (1) of the Constitution, the Polish Armed Forces are to safeguard the independence and territorial integrity of the State, and to ensure the security and inviolability of its borders. Article 26 (2) of the Constitution requires that the armed forces be neutral on political matters and subject to civilian and democratic control. Article 26 is located in the first Chapter of the Constitution, entitled 'The Republic', which contains the leading principles of the political and economical system of the state. The principles outlined in this Chapter are developed and concretised in the provisions of further chapters. Article 26 (1) defines the tasks of the armed forces, whereas Article 26 (2) introduces the principles of the armed forces' neutrality and of civilian and democratic control. However, the mission defined in Article 26 (1) and the principles comprised in Article 26 (2) are strictly interrelated. Referring to Article 26, the Constitutional Court stated: "Political neutrality is a consequence of the fact that the Armed Forces are the only part of the State's structure that has the fundamental, inalienable function of guarding the state's external security. [...] Defending the State's independence and safety, which is the main task of the Armed Forces and makes their situation particular and incomparable with the situation of other organs of the State, influences also the understanding of their duty to be neutral. [...] The notion of neutrality of the Armed Forces is indeed ambiguous. It includes neutrality understood as the principle of being impartial, of not coming under political influences from outside the Armed Forces, and particularly from political parties.

Military Law in the Republic of Poland

653

The most important is, however, the understanding of the neutrality of the Armed Forces as a duty to be guided by the common well-being of all citizens, and not of particular groups of citizens, which expresses itself in the maintenance of the State's independence, indivisibility of its territory, and inviolability of its borders." 7 The principle of the armed forces' neutrality and the Constitutional Court's approach to the concept is of significant importance in the context of restrictions upon soldiers' rights.8 Article 9 of the Constitution is also relevant in the context of the principles concerning the use of the armed forces. It states that the Republic of Poland respects all international law binding upon it. The aims and tasks of the armed forces correlate with the duty of every national to defend his homeland, which is provided for in Article 85 (1) of the Constitution, and therefore has the character of a constitutional duty. According to Article 85 (2-3), the principles of military service are specified in a statute and the possibility of alternative service is guaranteed for those whose religion or moral beliefs forbid joining the army. The Constitution itself does not contain other provisions concerning the use of the armed forces. However, Article 117 of the Constitution in principio states that rules concerning the extra-territorial use of the Polish Armed Forces are to be specified in a ratified international treaty or in a statute. b. The Government All governments since 1989 have adopted a policy of modernisation and démocratisation of the armed forces. Polish accession to NATO accelerated the process of the Polish Armed Forces' reform. However, the armed forces 7

Trybunai Konstytucyjny [Constitutional Court], Judgement No. Κ 26/98 of 7 March 2000; 'Neutralnosc polityczna jest nastçpstwem tego, iz Sily Zbrojne - jako jedyna czçsc struktury pahstwa - majci podstawowq niezbywalnq funkcje, jak