2-3 July 1998
"The Role of the Military in a Democracy"
Address by Major General H. Kujat, GEAF
Assistant Director Plans & Policy Division,
International Military Staff
- First, I would like to say that I am pleased to have this opportunity to speak to you today. Your country is still in a difficult state of transition, which poses new and different challenges every day. It is, therefore, important that people like yourselves have a positive attitude and the dedication to shape events in the years ahead. This is an indispensable prerequisite to help your country normalize its relations with the rest of Europe and beyond and to become a functioning member of the family of nations that make up the Euro-Atlantic community.
With my presentation on "The Role of the Military in a Democracy" I want to offer you some ideas and food for thought which might be of use to you.
- Let me start by mentionning that the Role of the Military in a Democracy is an ever-relevant concern which was already raised by Plato 2500 years.
The principle of political control of armed forces as we know it today is rooted in the concept of a representative democracy. It refers to the supremacy of civilian institutions, based on popular sovereignty, over the de-fense and security policy-making apparatus, including the military leadership.
Democratic control should always be a two-way process between armed forces and society. In a democracy, firm constitutional guarantees should protect the state - including the armed forces - from two types of potential dangers: from politicians, who have military ambitions, and from military with political ambitions.
- There is no common model of how to establish armed forces in a democratic society and how to exercise control over the military. There is, however, a number of shared principles. They include indispensable prerequisites to organize and to guarantee a proper civilian direction and control of armed forces. These are essentially
- the existence of a clear legal and constitutional framework, defining the basic relationship between the state and the armed forces
- a significant role of parliament in legislating on defense and security mat-ters, in influencing the formulation of national strategy, in contributing transparency to decisions concerning defense and security policy, in giving budget approval and in controlling spending - using "the power of the purse" in issues related to "the power of the sword"
- the hierarchical responsibility of the military to the government through a civilian organ of public administration - a ministry or department of defense - that is charged, as a general rule, with the direction and supervision of its activity.
- the presence of a well trained and experienced military corps that is respected and funded by a civilian authority. It acknowledges the principle of civilian control, including the principle of political neutrality and non-partisanship of the armed forces.
- the existence of a developed civil society, with a clear understanding of democratic institutions and values, and, as a part of the political culture, a nationwide consensus on the role and mission of their military.
- the presence of a reasonable non-governmental component within the defense community capable of participating in public debate on defense and security policy, presenting alternative views and programs.
- I assume that this is a solid and comprehensive yardstick for the measurement of armed forces in a democracy and their political control, which allows us to turn from theoretical considerations to reality taking my own country as a first example.
The relevant articles of the constitution foresee in summary the following mis-sions and roles for the Armed Forces:
- They defend the own country and participate in the collective defense of the Alliance
- They provide humanitarian aid
- They perform search and rescue missions
- They provide assistance in disasters
- They provide assistance in accidents
- They participate in maintaining public order, with and without arms, by
- providing administrative assistance
- performing protective functions
- assisting the police in emergencies
To avoid any misunderstanding - in the latter case, armed forces are the ultima ratio when police and border guard forces are not able to handle the situation in a common effort.
The Constitution explicitly prohibits any action, which could disturb the peaceful togetherness of nations or which supports the preparation of any aggression. Worth mentioning is also that the rules of the International Law predominate over the Basic Law. This results in specific responsibilities and obligations for the government, the citizens and especially the soldiers.
- In summary, the roles and missions of the Armed Forces are clearly defined and put into a comprehensive legal framework. The integration of the military into state and society also follows strict rules and is covered by a far-reaching set of checks and balances.
According to the Constitution, the "Armed Forces" is embedded in the system of the separation of powers. As part of the executive, the Armed Forces are bound by law and justice, and the protection of the basic human rights.
Different from other states, the commander in chief of the German Armed Forces is not the Federal President but a civilian Minister of Defense who is in charge of both civilian and military officials. Thus, the fathers of the constitution have firmly anchored the Primacy of Politics in the constitution and classified the Armed Forces as belonging to the system of constitutional organs without any concession. As a member of the Federal Government, the Min-ister is bound by the Federal Chancellor's authority to determine general policy guidelines.
Upon promulgation of a state of defense, command over the armed forces will automatically pass to the Federal Chancellor. He would then be the supreme military commander of all service personnel.
The fact that the German Armed Forces is embedded in the constitutional order of the state and controlled within the executive in summary results in the following
- Within the framework of the executive function of the state, the Armed Forces is subordinate to political leadership which is responsible to parliament and which is part of the Federal Government as an organ of the state.
- Like any other executive function of the state, they are subject to parliamentary control
- Like any other function of the state, they are subject to judicial control.
- Like any other function of the state, they are subject to control by the Federal Audit Office that annually audits the accounts of the Armed Forces and determines whether its finances have been efficiently administered.
Parliamentary control is exercised by a variety of means and bodies. The most important instrument, the right to pass the budget, gives the German Parliament, the authority to appropriate funds for the personnel and equipment of the Armed Forces in the annual budget. This general power of the parliament is especially reinforced by the constitutional rule that the numerical strength of the armed forces and the general organizational structure must be shown in the budget. This means that the parliament annually determines the actual strength of the Armed Forces and defines the framework for the employment of appropriate funds.
The parliaments Committee on Defense exercises special control functions as a standing committee
- It monitors the exercise of the defense function by the Government
- It does the preparatory work for important parliamentary decisions in the military and defense policy sectors
- It has the powers of a committee of inquiry
Furthermore, the Parliamentary Commissioner for the Armed Forces exercises parliamentary control and is responsible for the safeguarding of the basic human rights of military personnel.
When creating the military legislation, lawmakers provided an extensive set of legal rules and regulations governing the internal order of the armed forces. The constitutional requirements are given concrete form by the Legal Status of Military Personnel Act, which is supplemented by a variety of other codes, regulations and laws. As extremely progressive decision, the constitutional lawmakers inserted an article into the Basic Law, which states, that the basic human rights of military personnel may be restricted only to the extent being absolutely necessary to ensure the functioning of the armed forces.
Independent courts ensure that the armed forces comply with the law. A basic principle is that the members of the armed forces, like all other citizens, are subject to ordinary jurisdiction and also enjoy the guarantee of legal protection and the right to have recourse to the courts. There can be no independent military jurisdiction in the classic sense - i.e. jurisdiction as the product of the command authority of military leaders.
- While the basic principles enshrined in the German model apply to all NATO nations, there are subtle differences in both the nature and extent of parliamentary involvement in the process. Therefore, by way of a contrast, let me briefly review the system in the United Kingdom - with some comparative looks to the United States - as an alternative to that of Germany.
As with other democratic states, Parliament is central to the system of democratic control within the UK. However, the Sovereign, as titular Head of State, is the technical Commander-in-Chief of the Armed Forces. Nevertheless, as servants supporting the foreign and security policy of the state, the UK Armed Forces come under the clear authority of the elected government of the day, via the Prime Minister and a Cabinet of elected ministers, including that of the Secretary of State for Defence. The Defence Secretary, in turn, controls a Ministry of Defence made up of both military and civilian officials.
UK defence and budgetary planning starts with a formal and public statement by the Defence Secretary of the aim of UK defence policy. The current policy is to define the strategy and maximise, within given resources, the capability to deter any threats to, and if necessary defend the freedom and territorial integrity of the UK. Worthy of note, however, in the case of the UK, is that this role of defence extends to Dependent Territories. Moreover, specific reference is also made to the provision of support as necessary for the civil authority in countering terrorism. UK defence policy also embraces the pro-motion of wider security interests including the enhancement of democratic institutions and the protection of free trade. Hence, to say that the role of the Armed Forces is to defend the territorial integrity of the UK is too simple - it goes much wider than that.
The reference within UK defence policy to the provision of support in countering terrorism raises two key and precise principles regarding the role and legal status of the Armed Forces:
- The first of these is that the maintenance of public order and the law, un-der the ultimate authority of the state, is the responsibility of the civil police. The Armed Forces are only used as a last resort, and when used they only operate at the request, in support of, and under the authority of the civil police.
- The second principle is the need for a clear legal framework within which the Armed Forces operate. This legal basis for the UK Armed Forces is provided for in a 5 yearly Act approved by Parliament. Worthy of note within this Act is that the individual soldier has no greater powers than any ordinary citizen does. Moreover, while he owes powerful loyalties and duties to his military commanders, the political leadership and his Head of State, his ultimate authority is the law, both national and international. He is therefore not allowed to take any illegal action and, indeed, he has the legal right and duty to refuse to obey any illegal order, even in a state of war.
- Also worthy of note, in the context of the legal status of the Armed Forces, concerns the somewhat more restrictive interpretation within the UK regarding the need for political neutrality at the level of the individual servicemen. Unlike Germany, where it is regarded as important that individuals should not be separated from the democratic process, the involvement of UK military personnel in party politics is firmly barred. Moreover, if servicemen decide to stand for election to parliament or to any political office, they must immediately resign. Any expression of opinions in public about politically controversial topics is also seen as a serious breach of professional ethics.
Democratic control in the UK does not stop with the Parliament's role in the approval of the legal framework for the Armed Forces. Parliament also has more robust powers to scrutinise, question and challenge government policy, not only through the annual debate over the Government's defence policy, as laid out in the Defence White Paper, but also via Parliamentary debates on each of three services and on other specific security issues as they arise. Moreover, the House of Commons Defence Committee, which is made up of a cross-party selection of elected members with particular interests in security policy, conducts major investigations each year on defence topics of its own choosing. Hence, while it is true to say that the Government rather than Parliament makes defence policy, the latter has considerable power to influence it.
As with other Allies, however, the UK Parliament's greatest influence over defence lies in the approval of the defence budget.
The Government has to specify its financial plan in considerable detail to Parliament, and once approved the money cannot be used for other purposes. However, unlike the US Congress for example, which has considerable powers to scrutinise and amend the US defence budget in the process of clearing it, the UK Parliament cannot send the budget back for amendment - it is either "approved" or the Government would have to resign.
The reason for this difference lies in the fundamental differences between the UK and US constitutions.
The UK is a parliamentary democracy where all government ministers have been democratically elected and form part of the parliament. So the intense debate between government departments over the public expenditure plans is in fact part of the parliamentary process. The UK Government therefore has the general power to act on its own authority, and the role of Parliament is essentially that of exposing advising and holding to account afterwards.
Contrast this with the US, where there are 2 distinct and constitutionally separate branches of government - the Executive and the Legislature. With the exception of the President and Vice-President, government ministers are not directly elected, they do not sit in the Congress, and they have no representational function. In that system, it is only right that when the Executive has formed its plans, the elected representatives of the people should have the opportunity to scrutinise them to the extent of deciding where and when the money should be spent.