New International Law

February 21, 2007

Civilian Courts vs. Military Courts in the Democratic State

An independent and impartial judiciary is an important factor in the republican concept of the separation of powers. A juridical system operating free from interference and pressure from other branches of government, guarantying the rule of law in all fields of statecraft, is vital for the democratic governance of a country.

The military establishment of a country serves as an instrument of politics and is part of the executive power bestowed with the specific authorization to use violence under the supremacy of policy. The special task of the military and its embodiment of force make it particularly necessary that the military operates within the boundaries of the constitutional and legal framework of the state. The principles for a juridical system in a democracy – independence, impartiality, and fairness – must be extended to military jurisdiction as an integral part of the overall juridical design of the nation.

It also has to be taken into account that the strict hierarchical order of the military organization makes the theoretical distinction between disciplinary and criminal offenses inevitable. Consequently, the nature of soldiering and military duty subjects military personnel, particularly soldiers, to a twofold jurisdiction: as citizens they are subjected to the civilian code of laws; as soldiers and defense personnel they are subjected to a disciplinary system that covers all the peculiarities of military duty (e.g. defection from the troops, abuse of leadership authority, etc.). As far as the distinction between disciplinary and criminal offenses is concerned, non-criminal behavior on a mere disciplinary level is normally relegated to the juridical authority of military commanders and leadership personnel and does not immediately influence the military jurisdiction in the sense of establishing military courts. However, in order to make the juridical system on the disciplinary level transparent and subject to fair treatment according to the constitutional principles, sanctioned individuals can appeal to higher levels of military authority, independent institutions such as a board of complaint or a military ombudsman, or civilian administrative courts. In some countries, like
Germany, the guarantee to appeal is given through the institution of an Independent Office of the Parliamentary Commissioner, charged also with the oversight of military disciplinary treatments.

On a conceptual level, the issue of military criminal courts can be resolved in two principle ways: a) Establishing a separate system of military courts and military justice; or b) Civilian courts as all-encompassing juridical institutions extending their jurisdiction also over the military sphere.

 A variety of implications impacts the decision which systematic to choose. Among the most prominent are: The size of the military organization along with the predominant tasks and missions (exterritorial deployments); the history and tradition of the juridical culture; the complexity of the military world and the need to establish a specified juridical expertise; the maturity of the political system and the quality of civil-military relations.

The nations of the Euro-Atlantic community have placed their systems of military justice appropriately in their normal jurisdiction, however, have structured their systems differently. For instance Austria, Denmark, Germany, the Netherlands do not have special military courts while Bulgaria, Belgium, France, Poland, Spain, the United Kingdom and the United States do. The countries decide upon the aforementioned criteria and also how they assess the utility of their juridical system within the national circumstances.

The heterogeneous picture in the domestic legislation shows a wide variety of personal, territorial, temporal and subject-matter jurisdiction and varies in terms of functions, composition, and operation from one country to another.

In several countries, nevertheless, military jurisdiction has not yet reached the levels of democratic governance. Military courts in some Latin American countries, for instance, are not independent but rather organizationally and operationally dependent on the executive. Military judges are often military personnel on active service who are subordinate to their respective commanders and subject to the principle of hierarchical obedience. The question if the military courts can observe the right to be tried and judged by an independent and impartial tribunal with full respect for judicial guarantees remains an open one. In some cases, military courts try juveniles under 18 years age and also the right to conscientious objection is often undermined. In several Latin American countries the military have such broad powers that any offence committed by a member of the military falls to their jurisdiction so that military privilege becomes a true class privilege.

In some countries military courts are authorized to try even civilians in peacetime for violations of national security or anti-terrorist laws. However, many countries like Spain, Brazil, and
Guatemala have eliminated military jurisdiction over civilians for political crimes. Military courts were and are still used to try members of the armed serves of their nations, for instance police members, who have committed human rights violations.

It is mostly for these reasons that some experts argue that in a democracy civilian courts should have the jurisdiction over all criminal acts committed by military personnel and civilians, including common crimes and violations of civil liberties. The primary task of military courts should be limited and only observed when enforcing the implementation of the military code of justice in regard to military discipline and the effective performance of a mission. The need for military discipline should only criminalize offenses against military discipline, such as the abandoning of one’s post.

The issue should, in any case, be approached from the perspective of whether or not military jurisdiction is compatible with the obligations incumbent under international human rights law with regard to both the administration of justice and gross violations of human rights.

In the European context, the Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the European Court of Human Rights, offers directive in this regard. According to Article 6, the military justice system should seek to minimize disparities between the treatment of armed forces’ members and civilians. Only original signatories to the European Convention may derogate from the provisions of Article 6 in their application of the military justice system while new signatories are obliged to meet the Court’s requirements.

Another important dimension regarding civilian and military justice in democracies is the issue of peacetime and wartime jurisdiction. While the constitutional design of most states does not allow for military courts in peacetime, it does so for wartime periods. However, the problem remains the same. How can the requirement that courts should be independent and impartial and guarantee due process and the observance of human rights be met under all circumstances?

It is for this reason that the idea of implementing the so controversially debated International Criminal Court was brought up. Fair and impartial jurisdiction should be upheld for cases where national military justice could not be guaranteed for reasons of domestic instabilities, civil wars, or other rogue circumstances.

Irrespectively of the way in which military jurisdiction is organized, it has to be supported by proper legal education of officers and leadership personnel. The legal provisions help every commander to observe the rule of law whenever issuing an order, and assist him in exercising appropriate command authority. It countries where military justice is built upon the legal heritage of occidental thinking, individual responsibility stands at the core of legal regulations. Servicemen have a duty to disobey illegal (criminal) orders or orders which clearly and obviously violate human dignity and cannot justify their actions by referring having committed them upon an order. The individual accountability of even servicemen and the rank and file in the military pose a tremendous responsibility on the shoulders of both officers and soldiers. Nevertheless, it is an important dimension in strengthening military jurisdiction and providing the highest possible level of lawful conduct of the military and defense personnel.

A strong and efficient system of military courts and military jurisdiction assuring impartial and objective enforcement of legal provisions also serve as an effective means to prevent professional misconduct and violations of international humanitarian law and human rights as they leave no doubt that such offenses will be persecuted by competent domestic and international judicial organs.

In a world of comprehensive security, the mingling of military and non-military threats and challenges, and increasing civil-military cooperation in terms of national and international security affairs, the issue of military justice plays an ever more important role. The moral and legal challenges in an environment that features asymmetric warfare and confronts regular soldiers and military establishments with adversaries neglecting virtually all provisions of international humanitarian law are immense. When soldiering are carrying out their missions, which demand flexibility and creative adjustment to rapidly changing conditions, legal protection as well as enforcing legally appropriate behavior under all possible circumstances are of utmost importance. 

In a democratic context, this can only be achieved if the system of military justice is a fully integrated and accepted part of national jurisdiction, irrespective of how the military legal scheme is detailed within the nation’s juridical power.

author: Viara Zaprianova Marshall, legal expert, International Law, International Relations, Civil-Military Relations, Humanitarian Law, Human Rights Law, Political Science, Political Philosophy.


February 10, 2007

Constitutional and Legal Framework of Civil-Military Relations and Democratic Control of the Security Sector.

The Constitution, the Laws, the Division of Powers, Civil Society and Its Institutions: Fundamental Democratic tools of ‘Guarding the Guardians’

The most striking characteristic of modern statehood is a paradox: the separation of powers and the monopolization of force. Any modern democratic constitution ensures that the legislative power, as the one making laws, is clearly separated from the executive power, as the one who executes the laws. With the modern state civil society has given itself a tool of coercion that assures the populace of security from both external and internal threats while, at the same time, giving them the opportunity to live out their freedoms and determine themselves within the boundaries of legal justice. To achieve this aim, the use of force and the means of violence are monopolized and concentrated in the hands of the coercive tools of the state – the security forces, such as the military, the police force, border police and gendarmerie, etc. Given the task of the military to protect the country primarily from external threats, the monopoly on the use of a large range of instruments of lethal force rests with the armed forces. Since this almost exclusive monopoly on force endows the armed forces with the potential to physically dominate all other institutions and take over the political control of the state, one of the oldest challenges to a democratic society has persistently been of how to subordinate the armed forces to the civilian leadership and authority; a problem that has already concerned ancient Rome. It was the senator Juventus who raised the question in the Roman Senate, ‘Quid custodit ipsos custodes?’(Who shall guard the guardians?)

The problematic is difficult because it involves balancing two vital and potentially conflicting interests. On the one hand, the military should be strong to prevail in war, to ward off attacks and protect the society against any external threats and support internally when non-military security forces are overwhelmed; on the other hand, the polity wants to make sure that the use of force remains a last resort and a means used only when legitimized by the elected political authorities.  In light of the military’s capability to prevail under the exceptional circumstances of armed conflict and war, the uniqueness and distinctiveness of the military is an essential criterion influencing civil-military relations. Even under the conditions of modernity and the contemporary challenges to societies, there is a continuing need for the armed forces to remain apart from society in their distinctive organizational structure and military culture if they want to successfully carry out assigned tasks and missions. This distinguishing characteristic makes it even more crucial to establish civilian political control over the military and, at the same time, to integrate the military in a social and political environment. In modern civil societies the essential framework for the position of the military in the state as well as the mechanisms for the democratic civilian control over the armed forces are set forth in the Constitution. The political power of modern statehood is divided into three branches: The Executive (headed by the President or the Prime minister), the Legislative (usually exercised by the Parliamentary Assembly or Congress, with one or two houses), and the Judiciary. The strict rules of the constitutional and legal framework provide for a system of checks and balances that is intended to ensure successful governance. According to the Constitution, the armed forces are normally part of the executive and embedded in the system of the separation of powers. They are bound by law and justice, subordinated to the political leadership and, like the other executive branches of the state, the armed forces are subject to legislative and judicial control. This set of constitutional regulations shall ensure that the sole legitimate source for the direction and actions of the military should be derived from civilians outside the military establishment. These legal arrangements also make clear that the armed forces are accountable to the legitimate democratic authorities. Although subject to national differences, democratic constitutions generally bestow the responsibility for national security and the overall guidance of the armed forces on the executive power. The Constitution designates the President (in some cases the Prime Minister) as the Commander in Chief of the Armed Forces of the nation, who exercises his power normally through a cabinet and an appointed civilian Minister of Defense. The executive power formulates and proposes security and defense policies and implements them after approval by the legislature. The general role of the legislature in matters of defense and security is to pass respective legislation and to ratify procurement decisions, policies, and on the deployment of forces. The most important role for the legislature to exert civilian control, however, is the budgetary control, the ‘Power of the Purse’ function of the parliament, which gives it especially the competencies to pass the budget and to decide on appropriate funds for the personal and material requirements of the armed forces. This task is reinforced by the entitlement to parliamentary oversight in all fields of national security and defense. In addition, the parliament establishes special committees on defense to carry out a particular functions in monitoring the implementation of the security and defense policy by the government. Parliamentary Committees also participate in preparatory work for parliamentary debates and decisions on matters of security and defense.  The legislature may also subject the armed forces to control by a national auditing office regarding efficient, legal and transparent budgetary spending and lawful financial conduct of the armed forces. The legislature also provides an extensive set of legal rules and provisions pertaining to the internal order of the armed forces. Concrete military legislation is provided through laws on defense (such as Defense Acts) which, among other issues, regulate the legal status of soldiers and define basic rights and duties for military and defense personnel.

The significant role of the parliament in legislating on security and defense issues is also an important prerequisite for good civil-military relations. This role is crucial in the formulation of defense and security policies, the decision-making processes concerning defense budgets, and the controlling mechanisms for spending the resources.

The judicial power evaluates and interprets the constitutionality of laws and, by way of independent courts, monitors and ensures that the armed forces act in accordance with the laws. It also guarantees the members of the armed forces their rights and make sure that they are always subjected to a constitutional consistent jurisdiction.A firm constitutional foundation warrants a clear separation of powers and also defines the basic relationship between the state authorities and the armed forces. In essence, the constitutional provisions protect the state from two types of dangers: from politicians who have military ambitions, and from militaries with political ambitions.

Civilian political control finds its roots in the concept of representative democracy. The fundamental premise is that elected civilian authorities define and guide national policies concerning security and defense and maintain decision-making power over the military at all time. Civilian control and leadership, in the general sense, extends even beyond competence in a particular sense. Given the nature of modern societies, including the position of the armed forces as an instrument of politics, civilians are morally and politically authorized to make decisions. This holds true even if they do not possess the relevant technical competence in the form of a particular expertise. In a civil-military context this means that the military is tasked to help identify threats and appropriate responses, however, that beyond the military’s advisory role the political decision-making power rests with the civilian leadership.

With respect to civilian control of the military and the stance of the armed forces in society and state, a conceptual distinction between two principle forms – subjective and objective – of civilian control of military power has been made by Samuel Huntington in his seminal work “The Soldier and the State”. By subjective civilian control Huntington understood the maximizing of civilian power by both civilianizing and politicizing the military, by making it politically dependent, and denying the military a distinct professionalism remarkably different from other organizations in society; by objective civilian control he recognized the maximizing of military professionalism, making it a politically neutral tool of the state, and guaranteeing the military a distinctive existence as a professional body.
Huntington’s idea is that objective civilian control is preferable since the best guarantor for military subordination to political supremacy is a truly professional military. Only military professionalism would acknowledge the role of the military as an impartial instrument of national security, neither bound to engage in party politics nor prone to intervene in politics or assume governmental control.

Civilian political control, however, is only one aspect of democratic rule. The hierarchical responsibility of the military to the government through the establishment of a civilian minister of defense and a civilian administration in the ministry of defense do not exclusively provide for stabile civil-military relations. The legitimization of civilian control by legal institutionalization in connection with the organizational structures and control mechanisms built into the legal framework is only one precondition for establishing democratic civil-military relations. Political control is necessary, but not sufficient. The second parameter of civil-military relations, the societal dimension, is necessitated by the major three political factors making up the environment of civil-military affairs: the political elite, the military profession, and the civil society.

Several important scholars of civil-military relations theory came to emphasize the focus of societal rather than institutional state control as decisive in modern democratic civil-military relations. Among others, Morris Janowitz made clear that this side of civilian control refers to the incorporation of democratic ideas and values in the military culture as well as in the political traditions of a nation. While the military and particularly the officer corps have to fully acknowledge the principles of democratic governance and ought to share the basic democratic and human values, a developed civil society has to have clear understanding of the democratic political culture, including the acceptance of the roles and missions of the military.

Together with the need for the armed forces to earn the understanding and respect of the society within which they exist, society itself has a reciprocal duty towards the armed forces. Society must be understanding and respectful if it wants to enable the armed forces to contribute efficiently to national security, without overstepping the boundaries of their constitutional entitlements. The soldiers have taken on a personal obligation for their nation that is almost unlimited – an obligation that may include fighting and even dying. In return, the societal community must recognize the consequences of military duty, e. g. the use of land for military training, airspace. Furthermore, if the nation’s political leaders decide that conscription remains essential, society must accept the consequences of recruitment for individuals and families. Society also needs to acknowledge the expenses for defense and security, including the right of soldiers to proper pay, appropriate living conditions, and its obligation to integrate soldiers and their families in the civil environment for which they are required to serve. Adequate education of military personnel also plays a major role in the societal integration of the armed forces and reveals the necessity to turn the guardians into fully cultured and developed members of society who carry out their duties in a deliberate and conscientious manner. This will also help to reintegrate the soldiers both socially and economically after they have finished their service. The skills in civil emergency and disaster relief operations soldiers and defense personnel have acquired during their service will add valuable technical and leadership competencies to society.

All of these considerations reflect the fact that finding an appropriate position of the armed forces within the society is not only a matter of establishing constitutional norms, but requires reflection and sustained efforts by all actors involved in civil-military relations. It demands the reciprocal sharing of duties and responsibilities in a joint venture of civil and military players.

The maintenance of national security, including efficient contributions from the part of the armed forces presupposes some amount of confidence and trust, which the armed forces must have in their political leadership. Political governance has to be provided in a consistent and coherent manner with clear initiating and implementing authority, even and particularly when defense decisions have to be made in complex situations or during crises.  Representatives of the military establishment have to be heard in their advisory function and should be properly integrated in the counseling bodies established for political decision-making in security matters.

In open and democratic societies political processes take place under media scrutiny and the critical eye of the public. Transparency and legitimization of goals, objectives, and operative organizational procedures are constant challenges that have to be met by all organizations. The responsibility to explain defense policies and military needs to the public rests primarily with the government and the parliament. The military establishment contributes to these processes by presenting their tasks, roles, and missions openly to the community at national, regional, and local levels while observing political impartiality and without violating the principle of the supremacy of policy. This makes it inevitable that academic circles, the media, the industry, and the society as a whole are being integrated into the processes of communication and dialogue on security and defense matters.In a world of comprehensive security challenges, civil-military relations in a democracy is a wide-ranging, multifaceted, and interdisciplinary undertaking which involves all relevant forces of society and state. 

author: Viara Zaprianova – Marshall

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