Armed Forces in Law Enforcement Operations? - The German and European Perspective

Armed Forces in Law Enforcement Operations? – The German and European Perspective

.

Kim Eduard Lioe

Armed Forces in Law Enforcement Operations? – The German and European Perspective

Kim Eduard Lioe Oststrabe 11 45136 Essen Germany [email protected]

ISBN 978-3-642-15433-1 e-ISBN 978-3-642-15434-8 DOI 10.1007/978-3-642-15434-8 Springer Heidelberg Dordrecht London New York # Springer-Verlag Berlin Heidelberg 2011 This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilm or in any other way, and storage in data banks. Duplication of this publication or parts thereof is permitted only under the provisions of the German Copyright Law of September 9, 1965, in its current version, and permission for use must always be obtained from Springer. Violations are liable to prosecution under the German Copyright Law. The use of general descriptive names, registered names, trademarks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Cover design: WMXDesign GmbH Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)

To Bibi and Tet. Thank you for your boundless love and care!

To Stefanie Charlotte, my wife, my love and friend. Thank you for being here with me!

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Preface

This book has been submitted as a doctoral thesis to the Faculty of Law at the Europauniversita¨t Viadrina in Frankfurt an der Oder, Germany. I would like to express my sincere and wholeheartedly thanks to my thesis supervisor Prof. Dr. Wolff Heintschel von Heinegg for his trust, constant support and infinite academic stimulus. I hold his willingness to accept my somewhat outof-the-ordinary approach in highest estimation. With his scientific, yet pragmatic nature he is an inspiring example, especially when law meets politics. I would also like to thank Prof. Dr. Matthias Pechstein for the swift preparation of the second opinion and his kind but ever probing questions during the defence of my dissertation. In particular, I would like to express my deepest gratitude and respect to Jo¨rg van Essen, Member of the German Bundestag. Without his constant support and encouragement this book (amongst other things!) would not have been possible. Over the years, he has become a true friend. Special mention goes to Dr. Lasse Loft: I am glad I talked you into writing a PhD thesis – and I will always be thankful for your constant motivation, fellowship and friendship during our time at the university! Ankara July 2010

Kim Eduard Lioe

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Contents

A

Comparative Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. Frame of Reference: Germany’s Principle of Strict Separation . . . . . . . 1 1) Historical Setting: “Only Soldiers Can Fight Democrats” . . . . . . . . . 2 a) The German Confederation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 b) The German Reich . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 c) After the First World War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 d) The Third Reich . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 e) 1945–1948 and the Following Period . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 2) General Conscription . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 3) Present Division of Labour and Federal Structures . . . . . . . . . . . . . . . . 8 a) Bundeswehr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 aa) National Defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 bb) Contribution to Systems of Mutual Collective Security . 11 cc) Regional Disaster Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 dd) National Disaster Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 ee) National Emergency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 ff) Internal State of Emergency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 gg) Administrative Aid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 hh) Police-Related and Other Missions to Avert Dangers . . . 14 ii) Defence Policy Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 jj) White Paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 kk) Mandated Missions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 b) Military Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 c) Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 aa) Preventive Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 bb) Repressive Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 d) Federal Police and the Late Federal Border Police . . . . . . . . . . . . 19 aa) Historical Development and Original Mission . . . . . . . . . . 20 bb) Present Mission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 cc) Additional Mission: International Police Operations . . . . 23

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e) Other Forms of Cooperation Between Police and Armed Forces and Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Separation Within Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1) The Division of Labour . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) European Union Member States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) Austria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) Police Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ccc) Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Armed Forces: “Modes d´Engagement Ope´rationels” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) Police Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ccc) Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . cc) Bulgaria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) Gendarmerie . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ccc) Police Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . dd) Cyprus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) Gendarmerie . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ccc) Police Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ee) Czech Republic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1) Combat Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2) Non-combat Operations . . . . . . . . . . . . . . . . . . . . . . . . A) Non-combat Operations of the ACR Within the National Territory . . . . . . . . . . . . . . B) Non-combat Operations of ACR Outside the National Territory . . . . . . . . . . . . . . . . . . . . . . bbb) Police Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ff) Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) Home Guard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ccc) Police Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . gg) Estonia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) Defence League . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ccc) Combined Border Guard and Police Forces . . . . . . . ddd) Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . hh) Finland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) National Military Defence Forces . . . . . . . . . . . . . . . . . bbb) Border Guard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ccc) Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

26 26 26 27 27 27 28 29 29 29 31 32 33 33 33 34 34 34 34 35 35 35 36 36 37 38 40 41 41 42 42 43 43 45 45 46 47 47 48 49

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ddd) Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) Gendarmerie Nationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . ccc) Police Nationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ddd) Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . jj) Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) Police Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ccc) Border Guards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . kk) Hungary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) Border Guard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ccc) Police Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ll) Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) National Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ccc) Civil Defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . mm) Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1) Arma di Carabinieri . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2) Guardia di Finanza . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) Police Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1) Polizia di Stato . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2) Polizia di Penitenziaria . . . . . . . . . . . . . . . . . . . . . . . . . 3) Corpo Forestale dello Stato . . . . . . . . . . . . . . . . . . . . 4) Polizia Provinciale and Polizia Municipale . . . . ccc) Cooperation and Combined Operations . . . . . . . . . . . nn) Latvia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) National Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) National Guard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ccc) Police Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1) State Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2) Security Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ddd) State Border Guard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . eee) Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . oo) Lithuania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ccc) Other Security Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . ddd) Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pp) Luxembourg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) Police Grand Ducale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii)

50 50 51 52 57 59 59 59 61 61 61 61 62 64 65 65 66 67 67 67 69 70 71 71 71 71 71 72 73 73 74 75 76 76 77 77 77 77 79 80 80 81 81 82

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qq)

Malta . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) Malta Police Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ccc) Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . rr) Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) Royal Constabulary: Koninklijke Marechausse´e . . ccc) Police Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ddd) Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ss) Poland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) Police Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ccc) Other Security Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ddd) Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . tt) Portugal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) National Republican Guard . . . . . . . . . . . . . . . . . . . . . . . . ccc) Police Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1) Public Security Police . . . . . . . . . . . . . . . . . . . . . . . . . . 2) Criminal Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3) Other Civil Security Forces . . . . . . . . . . . . . . . . . . . ddd) Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . uu) Romania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) Gendarmerie . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ccc) Border Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ddd) Police Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vv) Slovakia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) Police Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ccc) Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ww) Slovenia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) Police Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ccc) Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xx) Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) Security Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1) Guardia Civil . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2) Policia Nacional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3) Policia Local, Policia Urbana . . . . . . . . . . . . . . . . . 4) Mossos d’Esquadra . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5) Ertzaintza . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6) Miqueletes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

82 82 83 83 84 84 85 86 86 87 87 89 90 90 93 93 96 98 99 100 100 101 101 101 102 102 102 103 103 104 104 105 105 105 106 107 107 109 109 110 111 111 112 113

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ccc) Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sweden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) Home Guard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ccc) Police Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ddd) Coast Guard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . eee) Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . zz) United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ccc) Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) European Gendarmerie Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Bi- and Multinational Joint Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Intermediate Result . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2) The Mission of European Security Forces . . . . . . . . . . . . . . . . . . . . . . a) The Need for Separation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) Relevant Examples of Military Intervention in Domestic Politics: From Ceausescu to Berisha . . . . . . bb) “Mutual Checks and Balances” of a Modern Democracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . cc) Integration into a Democratic Political System . . . . . . . . . b) The Mission of the Armed Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) Defining the Military Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) External-Defensive Functions . . . . . . . . . . . . . . . . . . . . bbb) Means-Based Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . ccc) Organisational Structure: Top-Down . . . . . . . . . . . . . ddd) Legal Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . eee) Military and Police Ethos . . . . . . . . . . . . . . . . . . . . . . . . . fff) Characteristic Dilemmata . . . . . . . . . . . . . . . . . . . . . . . . . 1) Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2) Centralisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3) Castellation and Formalisation . . . . . . . . . . . . . . . . ggg) Norm-Derivative Approach . . . . . . . . . . . . . . . . . . . . . . . hhh) Preliminary Finding: Norm-Derivative with a Twist . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) Defining the Mission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Defence of the National Territory . . . . . . . . . . . . . . . . bbb) Crisis Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ccc) Humanitarian Missions . . . . . . . . . . . . . . . . . . . . . . . . . . . ddd) States of Emergency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . eee) Natural Catastrophes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . cc) Preliminary Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Police Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) Defining the Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . yy)

113 113 113 116 117 118 119 121 121 123 124 127 130 131 131 132 133 135 136 137 138 140 144 146 147 148 150 150 151 152 153 154 155 157 157 158 159 161 162 163 163

xiv

B

Contents

aaa) Inherently Political . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) Bottom-Up Organisation . . . . . . . . . . . . . . . . . . . . . . . . . . bb) Defining the Mission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aaa) Policing at Home . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1) Community Policing . . . . . . . . . . . . . . . . . . . . . . . . . . 2) Law Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bbb) Policing Abroad . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Paramilitary Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) Border Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) Peace-Support Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . cc) Fight Against Terrorism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e) Cooperation Within the Particular Mission . . . . . . . . . . . . . . . . . . . aa) Within National Territory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) Within PSO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . f) The Problem of Homogenisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . g) Intermediary Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3) Defining the Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Missions Defined by Constitutional Law . . . . . . . . . . . . . . . . . . . . . . b) Missions Defined by Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Missions Defined by Executive Authority . . . . . . . . . . . . . . . . . . . . . III. Preliminary Findings: Security Forces in Categories . . . . . . . . . . . . . . .

163 165 166 166 166 168 171 172 173 175 176 177 177 178 179 182 183 184 185 186 186

Operational and Institutional Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . I. Reflections of the Principle of Separation . . . . . . . . . . . . . . . . . . . . . . . . . . . 1) A European Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2) A German Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. The German Legal Ambiguity During Joint Operations Abroad . . . III. Reappraisal of Assignment: Pitfalls and Potentials . . . . . . . . . . . . . . . . . 1) Exemplary Paragons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) U.S. Constabulary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Multinational Specialised Units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2) Repercussions on the Bundeswehr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) The Choice of Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) Stabilising Forces of the Army . . . . . . . . . . . . . . . . . . . . . . . . . . bb) Military Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Training and Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3) Possible Strategies for the Bundeswehr . . . . . . . . . . . . . . . . . . . . . . . . . . a) Transformation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Retreat from PSO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Successive Combination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4) Repercussions on the Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Pro: Conceptual and Operational Advantages . . . . . . . . . . . . . . . . . aa) Experience . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) Easing the Transition to Civil Security Structures . . . . . .

189 189 189 191 193 195 198 198 199 200 201 201 203 203 206 206 206 207 207 209 209 209

Contents

xv

cc) Expenditures: Personnel Costs . . . . . . . . . . . . . . . . . . . . . . . . . . dd) Multiple Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ee) Flexibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Contra: Legal and Institutional Impediments . . . . . . . . . . . . . . . . . aa) Parlamentarian Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) Public Services Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . cc) Inconsistent Development of the Federal Police . . . . . . . . dd) National Balances and the Lack of Operational Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ee) Fragmentation of Auspice and Competence . . . . . . . . . . . . ff) Insufficient Training and Equipment . . . . . . . . . . . . . . . . . . . . gg) Expenditures: Material and Training . . . . . . . . . . . . . . . . . . . . c) Action Alternative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5) Intermediary Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Findings: Doctrinal shift . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C

211 212 213 214 214 215 216 217 219 220 223 223 224 224

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233

.

Introduction

Within existing types of security relationships most commonly associated with liberal democracy, one of its most noteworthy objectives concerns the separation of powers and tasks between the police and the military. Though military and civil spheres are regularly perceived as distinct and separate, they do merge or at least overlap for a great part.1 A precise distinction is not only blurred in less developed countries, even highly developed liberal democracies differ markedly in their comprehension of the function, role, and organisational structure of the various units that bridge the gap between police and military character.2 Despite some European tendencies to create hybrid-type units, there seems to exist a general consensus that police and military forces should be clearly distinguished and separated. In the centre of this study lies the allocation of responsibilities and the division of labour between the armed forces and the mission of the police.3 Broadly speaking, their mission defines the demarcation line between the spheres of internal and external security by assigning former to the police and latter to the armed forces. Focal idea is the evaluation of the feasibility of a strict separation as maintained in Germany in a European context, practical difficulties in the application and potential ways to avoid such difficulties. This comprises in particular a comparison of the “German Way” to other European states and the corresponding methods chosen against the background of joint operations abroad. The concern of the present research project is to find possible solutions to a transition in demand, be it from a legal or pragmatic point of view. Police related tasks such as the fight against trafficking in human beings, arms smuggling and other forms of organised crime potentially tend to cross national territories while

1

Frankfurter Allgemeine Zeitung of April 10th 2006, p. 1. While function is taken to be the task formally allocated, role refers to the actual activities undertaken. 3 The word Police derives from the Greek expression politeia, referring to government and administration. 2

xvii

xviii

Introduction

military tasks emancipate from a mere national defence. The reason for such a shift in tasks on parts of the military is due to the far-reaching integration of states in international obligations as well as the number of foreign and peace-support operations following September 11th 2001.4 These obligations call for transnational activities to cope with these new threats while global acting terrorism developed to a new and dangerous threat, thus bringing together police and military related missions. The review is thus chaptered into the main thematic priorities of comparing the individual division of labour including the underlying legislation and the consequential analysis of the findings, contraposing the German principle of strict separation to a Pan-European perspective and setting forth potential drawbacks.

4

Peace-support operations (PSO) are commonly divided into peacemaking missions (referring to an establishment of peace in a present conflict), peacekeeping missions (referring to a preservation of peace), peace enforcement (referring to an application of force to implement peace), and postconflict operations (based on Boutros-Ghalis definition of peacebulding, the term “post-conflict” refers to a period in the cycle of conflict when large-scale violence between parties has significantly dimished or ceased, see “An Agenda for Peace, Preventive diplomacy, peacemaking and peace-keeping”, Report of the Secretary General of June 17th 1992, A/47/277 – S/24111, http:// www.un.org/Docs/SG/agpeace.html, visited May 29th 2010).

.

A

Comparative Law

It is indisputable that the abstract missions of the armed forces and the police differ already as a basic principle. This principle applies not only to Germany but also to the whole European Community. This difference is a product of traditions, history, sociology and geography.

I.

Frame of Reference: Germany’s Principle of Strict Separation

Since the implications of the rather specific German principle of strict separation and its future development are to be evaluated, a review from a German point of view seems appropriate to convey understanding for the distinctiveness and the consequences in the light of this particular nature. Thus, the German approach of dividing labour will be the frame of reference, quasi the lens through which the approaches of other European member states will be examined. The safeguarding of internal security was perceived as assigned mission of the police forces while the guarantee of external security was understood as assigned mission of the armed forces. This clear-cut distinction was principle at the time of the integration of the military constitution (defence constitution amendment) into the German basic law.1 Though this distinction was integrated in the year 1956, it became watered down in the true sense of the word during the floods of 1962 already. And although the general maxim of the strict separation was retained, the Notstandsverfassung from 1968 comprised police-related assignments of the Bundeswehr for the first time. Sparked off by the events of September 11th 2001, the discussion concerning a deployment of armed forces in the fight against terrorism arose once again just as the discussion concerning a differentiation of internal and external security did.

1

Bode, “Milit€arische und zivile Verteidigung”, in Deutsche Verwaltungsgeschichte, ed by Jeserich, Pohl, von Unruh, vol. 5, Die Bundesrepublik Deutschland, p. 518–541 (527).

K.E. Lioe, Armed Forces in Law Enforcement Operations? – The German and European Perspective, DOI 10.1007/978-3-642-15434-8_1, # Springer-Verlag Berlin Heidelberg 2011

1

2

A Comparative Law

In the case of Germany, the mission of the armed forces is laid down in the constitution. Corresponding provisions can be obtained from Articles 87a and 91 of the constitution.

1)

Historical Setting: “Only Soldiers Can Fight Democrats”

Since a strict separation between the missions of armed forces and those of the police forces is quite unique in Europe, the need to examine the reason for this significant development obviously exists. The specific motivation for the strict separation of the missions was to never again allow a situation to arise in which German soldiers take arms against their fellow citizens. Parallel incidents happened in times of the Empire, the Weimar Republic and the Third Reich. Definitions of the term policing were put forward for scientific discussions already in times of absolutism. The term “Polizey” comprised the entirety of public administration. It was not until the seventeenth and eighteenth century that administration of justice, finance and the army became separated. The term “Polizey” arose for the first time in Germany in an Episcopal ordinance of the city of W€urzburg in the year 1476 and became integrated into several Reichspolizeiordnungen in the following decades.2 An absolute monarch did not limit police activities to the preservation of public order but could virtually boundlessly trench upon the judicial sphere of his subjects. Following the implementation of the separation of powers, a new two-tiered conception of police forces emerged. According to this approach, a distinction was drawn between the averting of dangers on the one hand and the ensuring of scope for personal development as well as the creation of relevant installations such as schools and hospitals in terms of a welfare police force on the other hand. Likewise, the Prussian General Law contained regulations and provisions concerning the maintenance of public peace, security and order though it assigned additional tasks of welfare and social service to the police forces, thus rendering the scope of responsibilities of the police as almost limitless.

a)

The German Confederation

The signing of the Constitution on June 8th 1815 was the weightiest event during the timeframe of the German Confederation from 1815.3 Endorsed by several subsequent agreements, the federal army was no coherent and integrative armed 2

Uwe Volker Wentz “Die Entwicklung des Polizeibegriffs vom Mittelalter bis zum Nationalsozialismus” “Anwaltsblatt: Nachrichten f€ ur die Mitglieder des Deutschen Anwaltsvereins e”.V., 38 (1988) 5, p. 264–270. 3 Ernst Rudolf Huber, “Dokumente zur Deutschen Verfassungsgeschichte”, Corpus Juris Confoederationis Germanicae, vol. 2, p. 1 et seq.

I. Frame of Reference: Germany’s Principle of Strict Separation

3

force, but rather a cumulated army, consisting of contingents from all federal states and under the sole command of one federal commander according to case-by-case decisions during crises. According to Article 25 (1) of the last act, the safeguarding of internal peace and order was preferably the responsibility of the federal states. Consequently, a few incidents occurred, during which military measures against political movements were executed. But the army was more than only an instrument of suppression against citizen straying from the given political path. Due to the authorisation of the Execution Order, it could also be employed as an instrument of power against federal states not complying with federal duties. Speaking of a breach of duty giving rise to an employment of the army, the exercising of leniency towards claims of the subjects of having a right to a say could already be regarded as sufficient. The following incidents were of grave character. Prussian military forces played a fatal role during the period between the mid nineteenth century and 1945 where no clear distinctions between military and police tasks were drawn. During the civil-democratic uprisings in the years 1848/1849, the Prussian Army even played their role of a counter-revolution. Thus, the monarchic military-state became restored and bolstered by military forces. Martial law was declared in Berlin and the Prussian National Assembly was dissolved by force. The motto of that time among governing authorities was: only soldiers can fight democrats.4

b)

The German Reich

Changes regarding the relevancy of the army in the German Reich from 1871 were of relatively little account. As in the Confederation, the army was again not arranged in a centralised manner but rather compiled by several military contingents of the single states. The Emperor ensured the military’s loyalty by having all troops at his command, except for the Bavarian Contingent during peacetime, enabling him to declare martial law without consent of the Bundesrat in almost every part of the German Reich if public security was endangered.5 Based on the Prussian Law on the State of Siege, the executive authority passed over to the military commander, allowing for a response with military means to political unrest.6 Though the scope of deployments became regulated to a higher degree at a later point, the army could be called in for civil administration functions or to fulfil police related tasks such as the guarding of public objects. By and large, the military had a significantly high rating in everyday life, exemplarily documented by the former } 758 III Code of Civil Procedure (Zivilprozessordnung), according to which a bailiff could call for military help as a robust support to overcome active resistance of the obligor. Based on a resolution of the Bundesrat, the Emperor was 4

General Karl Gustav von Griesheim. Tobias Linke, “Innere Sicherheit durch die Bundeswehr?” A€oR 129 (2004) p. 500. 6 Adolf Arndt, “Das Staatsrecht des Deutschen Reiches”, 1901, p. 479 et seq. 5

4

A Comparative Law

furthermore empowered to dispatch troops in the event of states breaching their duties within the federal system as he was in times of the Confederation. In the further development, the armed forces increasingly raised their claim to play an important role in domestic political affairs, even after the foundation of the German Reich 1871 and in the following decades. This comprised the fending of any social-revolutionary or democratic tendency. Thinking in military categories, oppositional movements were summarised under the general expression of the Reichsfeind and were thus to be fought strictly. The deriving conflict has to be regarded as a crucial one in the history of the monarchy and was not fought on the streets alone but also within military perimeters and structures. Core of the conflict was a significant number of the recruits coming from families which were part of this oppositional movement and were therefore suspected to foster a revolutionary spirit. The German Emperor exacted his toll in calling for a willingness of the young recruits to fight their friends and families on his demand in his fight against socialistic tendencies to secure the future of the Reich. One of the most important instruments in this context was the so-called Belagerungszustandsrecht, a Prussian Act from the year 1851, allowing for an adaptation of the rules of war to internal conflicts. Civil rights could be limited, civil authority transferred to military commands, and soldiers could be deployed in armed conflict facing their fellow citizens. A fundamental part of the authority was transferred to the Prussian Ministry of War and the subordinate Generalkommandos during the beginning of the war in 1914.7 On this basis, the armed forces gained a decisive position during the first years of war as far as their influence on internal national affairs was concerned. In fact, the armed forces held a position enabling them to control entire political processes by censorship, power to intervene in the right of assembly, to change the curriculum in schools and to assume the leadership of crucial industries. The second half of the war was hence depicted as a military dictatorship, deriving from the military structures that the public administration was based upon. The Oberste Heeresleitung developed into the leading entity of home affairs, mobilising against the call for reforms and the rise of the democratic ideal. This made this part of the armed forces become the real opponent of the masses, demonstrating for peace and freedom since 1916. According to Bismarck’s imperial constitution, the organisation of police forces was principally a matter of the federal states, at least as far as the averting of dangers was concerned. The so-called “Kreuzbergurteil” by the Prussian Administrative Appeals Tribunal confined the scope of responsibility of the police to the averting of dangers.8 In addition, special laws and special police forces such as a building-, immigration or sanitary police were established. To the towns, communities and districts of the Weimar Republic, gendarmes were delegated who where 7

Even before the war, soldiers were deployed in a bloodless conflict with striking mineworkers in 1912. 8 The “Kreuzbergurteil” of June 14th 1882 decided that the police was not competent to safeguard aesthetic interests, thus limiting the responsibilities of the police forces and rendering the underlying police act void.

I. Frame of Reference: Germany’s Principle of Strict Separation

5

historically regarded as a member of the military within the framework of Prussian civil service law.

c)

After the First World War

During the revolutionary uprising between 1918 and 1920, the leaders of the Reich were for the first time forced to deploy soldiers in their struggle to maintain law and order and to fend off the impending Bolshevik influence. Although Wilhelm II never carried out his threat from 1851, Gustav Noske, designated commissary for the army and navy and later Reichswehrminister turned this scenario into brutal reality. On the occasion of an occupation of several editing offices of newspapers by a few radicals during January 1919 in Berlin, he assigned voluntary units, so-called Freikorps, to take up the fight against the left-orientated disturbers, ensuring the political survival of the government.9 In the following months, the Freikorps murdered hundreds of civilians, including the leaders of the new communist party Rosa Luxemburg and Karl Liebknecht as well as Foreign Minister Walther Rathenau. In the time after the Kapp-Putsch 1920, the Reichswehr remained relatively apolitical by granting no suffrage to its members, however it also remained hardly controllable due to its development to a “state within the state”. After the First World War and the subsequent collapse of the monarchy, the new republican constitution assigned the military sovereignty to the centralistic state alone. The numerous military contingents became conjoined and incorporated into the much more modern and homogenous Wehrmacht.10 This Wehrmacht was under the supreme command of the Reichspr€ asident, who in turn required the consent of the minister concerned to authorise any military command. The Weimar Constitution authorised solely the President of the Reich to deploy the Reichswehr to safeguard internal stability. Still, military means could be employed against both civil agitators as well as disobedient federal states. In winter 1923/1924 the Reichspr€ asident Friedrich Ebert had to declare a state of emergency due to the internal turbulences and riots, leading to a shift of executive authority to the military command. In the wake of these turbulences, the intensity of the military’s fight against the riots increased, though aiming at a powerful military state rather than at a democratic state. Most soldiers were motivated by the opposition against anything leftist, which marks the cornerstone of the continuity of their history since 1848/1849. The envisioned military state became reality on January 30th 1933, marking the turning point into the Third Reich. 9

These uprisings are also known as the “Spartakusaufstand”. Although the year 1935 is often referred to as being the year of foundation of the Wehrmacht, laws on the establishment of a preliminary Reichswehr from April 1919 as well as the constitution of the German Reich from August 11th 1919 use the term Wehrmacht to describe armed forces. This designation might however be due to common parlance of that time, relating to the general notion of armed forces. 10

6

d)

A Comparative Law

The Third Reich

During the reign of Hitler in the Third Reich, the amalgamation of police and military tasks became inverted. While in the years before the military often discharged police related tasks, the police now began to perform military tasks in turn. This development later culminated in an integration of police battalions in the war of extermination. Compared to the preceding period and in accordance to the concept of Gleichschaltung, the German police became centralised in Prussia. As from 1935, the police became structured into the Ordnungspolizei and the Sicherheitspolizei. Whereas the former was responsible for the maintenance of public order, the latter was assigned the task to supervise public security and became subdivided into the Geheime Staatspolizei and Kriminalpolizei. Allocated to the Ordnungspolizei became the Schutzpolizei of the Reich and the communities, the Gendarmerie and also the fire brigade. Control over both the Geheime Staatspolizei and the Kriminalpolizei was executed by higher SS personnel. At the bottom line, the police forces became drastically centralised and at the same time disengaged from the state. In addition, the police forces became heavily politically entangled. Between 1933 and 1945, the police forces engaged in politics, e.g. by the constitution of political police departments such as the “Abteilung Ia” of the Berlin police headquarters which comprised the counter-intelligence corps or later the formation of the Gestapo. This advancing disestablishment of the police was symptomatic for the social and political rootedness of the police in the Third Reich. As early as 1933, the process of joining the political police forces to a uniform Secret State Police began. Milestone of this development was Heinrich Himmlers appointment as “Reichsf€ uhrer SS und Chef der Deutschen Polizei” 1936, adding to the separation of the police forces from the state and the simultaneous integration into the party. Since this integration contradicted prima facie the general trend of centralisation, it conduced to the increase of power of the police. In addition, this remarkable dualism carried with it the inherent aggravation of authority in relation to the judiciary. Characteristically, jurisdictional protection against measures of the Geheime Staatspolizei was withheld, allowing for an unopposed development of the police into an instrument of national socialist judiciary and political prosecution.

e)

1945–1948 and the Following Period

After the end of the Second World War, an organised administration of the police developed tardily. Offices and positions were regularly taken over by homecomers. The further development of the structure of the police was coined by the different occupying powers. In the American zone of occupation missions of the police were assigned to units of the Military Police. This strategy brought about quite diverse approaches since every branch of the US forces held its own Military Police Contingent with its own criminal police. In addition, the US Constabulary became

I. Frame of Reference: Germany’s Principle of Strict Separation

7

installed, adding to the multifaceted approach to policing in post war Germany. A similar strategy was employed in the British occupation zone, assigning police tasks to the Military Police. In addition, local or municipal police forces were not permitted while it was not until the denazification that deliberations concerning police forces of the individual federal states were made. In the French occupation zone, Military Police units took over police assignments until municipal police forces were established. In addition, French Gendarmerie was engaged in police issues in the occupied areas. In the Soviet zone of occupation, police tasks were assigned to the Military Police as well and it was not until October 2nd 1990 that this engagement was brought to an end. Due to the soviet influence, the structure of the police forces of the GDR were distinctly centralised and politically organised. Besides, the Volkspolizei was tightly organised along military lines though subordinated to the Ministry of Interior. The area of responsibility of the Volkspolizei ended a few miles off the border. These last miles were within the scope of responsibility of the Grenzpolizei. After the reunification, the Volkspolizei was dissolved and became integrated into the police corps of the new federal states while members of the Grenzpolizei were partially taken over by the Federal Border Police. During the 1950s, approx. 90% of the civil servants and mainly members of the police forces of the Third Reich were reintegrated into police structures in western Germany. In addition, a number of police organisations were established in coexistence. Beside the police forces of the federal states, police forces of the federation such as the Federal Border Police, Federal Criminal Police Office, the Federal Parliament Police, the Railway Police, and the Security Service of the Federal Mail were created. The formation of the Bundeswehr of May 5th 1955 led to considerable political discussions, especially due to the fact that it was for the greater part composed of former members of the Wehrmacht. The Federal Border Police is regularly referred to as the progenitor of the Bundeswehr.

2)

General Conscription

Regardless of the above-mentioned aspects, historical reasons do not suffice to account for this unique separation of responsibilities. Moreover, it is also a stringent consequence of general conscription. One of the focal ideas behind the principle of general conscription is to tie the armed forces in the remaining population. The more families with a member in the armed forces, the more understanding, support, and sympathy the forces obtain and the more the forces get integrated into the basis of a nation. On the other hand discontent and unrest of the population is likely to find its way easier into the forces, leading to a major impact on the moral and the integrity of the soldiers involved. Though the vow to be obedient implied quite naturally the willingness to oppose the residual population including the own families in the days of the German Empire, modern times call for a different way

8

A Comparative Law

of coping with this kind of conflict. This perception led to the insight that armed forces were to be kept out of any internal conflict to ensure a functioning defence. Only neutrality concerning domestic and political affairs is considered suitable to guarantee the internal peace of a conscription army, thus enhancing the military’s efficiency in fulfilling their primary mission to defend the country.11

3)

Present Division of Labour and Federal Structures

The problem of deploying armed forces with police-related missions has long been regarded as a question of federalism. The Federal Constitutional Court emphasised this on various occasions,12 supported by many voices in the literature.13 In contrast to France or Italy, the obligation to ensure internal order by a security agency is not imposed on the Federal State. The basic law allows for the establishment of federal authorities like the Federal Police or the Federal Criminal Police Office only in particular cases. This allocation of responsibilities regulates the possible scope of employment according to a special constitutional justification. The maxim to preserve the division of labour implies that police-related assignments of the Bundeswehr must remain an exception. Thus, the permitted assignments strictly need to be functionally and temporally limited. In addition, the Bundeswehr may only be deployed if the police forces do not rise to the occasion and are incapable of fulfilling the mission itself. This functional and temporal limitation as well as the principle of necessity prevents the armed forces from becoming a standby police force to which federal states could revert to for lack of adequate personal and technical equipment. In respect thereof, tasks of private security companies and guards services are restricted to protecting private buildings, companies, events, money transporters and other objects.

a)

Bundeswehr

Main point in this section is the question of genuine tasks in the field of German Armed Forces. The armed forces are defined as all military units, i.e. having particularly effective weapons and being organised to the principle of military command and control.14 This definition does not comprise officers of the federal 11

Martinez Soria, “Polizeiliche Verwendungen der Streitkr€afte” DVBl (2004): p. 599. E.g. the decision of the Federal Constitutional Court of February 15th 2006 – 1 BvR 357/05; NJW 2006 (11) p. 751. 13 E.g. Manfred Baldus, in: Das Bonner Grundgesetz, ed. by Mangoldt/Klein/Starck, vol. 3, 4th Edition, Article 87a margin no. 1. 14 Bodo Pieroth in “Grundgesetzkommentar” Hans D. Jarras, Bodo Pieroth (Eds), 8. Edition, Munich 2006, Article 87a, margin no. 4. 12

I. Frame of Reference: Germany’s Principle of Strict Separation

9

police forces or of a federal state. Likewise not comprised are members of the Federal Defence Administration,15 judicature of the Bundeswehr16 and the Military Chaplaincy.17 The German Constitution provides a number of opportunities on which armed forces can legitimately be deployed. Beside defence, any further mission must be expressly permitted by the basic law, according to Article 87a II of the constitution. This legal norm is restrictively formulated, since the Federal Constitutional Court interdicts any operation of the Bundeswehr on the inside, regardless of its substantiation.18 To begin with, conceivable tasks of the armed forces have to be distinguished into two main groups, “Einsatz” and “schlichte Verwendung”. A borderline between the perceptions of these terms in the light of an applicability of the constitutional reservation of Article 87a II can either be drawn by military armament,19 a special military structure of organisation20 or even by simply acting within the scope of executing authority.21 Further attempts suggest the criterion of “mission to use force” or the permission to act as sovereign authority and to use means of coercion as being the conclusive borderline. Though these criteria are regularly stated alternatively or even combined, a majority in the German literature accepts an acting as part of the executive authority as “Einsatz” in the sense of Article 87a II of the basic law.22 Briefly said, if the intensity remains below the “Einsatz” or mission threshold depicted in Article 87a II of the constitution, an application of armed forces is referred to as “schlichte Verwendung” or utilisation.23 Thus, a mission in a constitutional sense can be defined as an armed application of the forces and moreover any unarmed application being a sovereign act and not neutral as far as home affairs are concerned.24

15

Under the terms of Article 87b of the German Basic Law. Under the terms of Artt. 96 II and IV of the German Basic Law. 17 Under the terms of Article 140 of the German Basic Law in conjunction with Article 141 of the Weimar Imperial Constitution. 18 Decision of the Federal Constitutional Court of July 12th 1994 – 2 BvE 3/92, 5/93, 7/93, 8/93, BVerfGE 90, 286 (p. 356 et seq.), mentioning extended interpretation, analogical application on unregulated cases and unwritten authority due to the principle “Kraft Natur der Sache”. 19 G€unter D€urig, in: Maunz/D€ urig, Article 87a margin no. 32. 20 Manfred Baldus, in: H. von Mangoldt/F. Klein/C. Starck, (eds) Article 87a, margin no. 32 et seq. 21 Klaus Stern, vol. 2, p. 46. 22 A valuable overview by Tobias Linke, “Innere Sicherheit durch die Bundeswehr?” A€oR 129 (2004), p. 489–541 (493). 23 Both translations of “Einsatz” and “schlichte Verwendung” by the author. 24 According to this definition, examples for a “Einsatz” are measures taken according to Chapter VII of the UN Charta, military operations to safeguard German citizens abroad, and military operations supporting police searches within the national territory. No “Einsatz” in this sense are assignments of the armed forces for representative purposes such as guards of honour and charitable tasks e.g. concerning military cemeteries, cf. Bodo Pieroth in “Grundgesetzkommentar” Hans D. Jarras, Bodo Pieroth (Eds), 8. Edition, Munich 2006, Article 87a, margin no. 7, 8. 16

10

A Comparative Law

Among the missions depicted as “Einsatz”, most important is the defence of the nation, laid down in Article 87a I 1 of the Constitution. Article 87a II of the Grundgesetz constitutes: “Apart from defence, the armed forces may be employed only to the extent expressly permitted by this Basic Law”. This reflects the crucial factor in the current debate concerning the constitutional authorisation for a mission of the armed forces on the inside. In very close bounds, Article 87a II offers the possibilities that the Bundeswehr may be brought into action in cases other than mere defence from an external threat. A second employment is thus laid down in Article 87a I/II in connection with Article 24 II of the Constitution and concerns a deployment within the scope of a system of mutual collective security. The third possibility is the case of regional disaster relief, regulated in Article 87a II in connection with Article 35 II 2. Another potential deployment is possible under the circumstances of national disaster relief, regulated in Article 87a II in connection with Article 35 III. A fifth deployment of armed forces is admissive in the case of a national emergency as mentioned in Article 87a II in connection with Article 87a III, while the sixth possibility concerns an internal state of emergency and is regulated in Article 87a II in connection with Article 87a IV of the constitution. Examples for mere utilisation are strictly humanitarian aid missions, harvest assistance, assistance in social and charitable fields, operations of commercial training of the troops and administrative assistance.

aa)

National Defence

The first and foremost mission of the armed forces is – in principle – the defence of Germany’s territory. This derives from Article 87a of the Constitution: “The Federation shall establish Armed Forces for purposes of defence”. However, the constitution does deliberately not provide a more precise determination of the term “defence”. At the time when the military constitution was established, the notion of defence could obviously not comprise the defence of the national territory since Germany was still separated. Due to this circumstance, the precursor of the Ministry of Defence, the “Amt Blank”, coined the expression that the object that was to be defended was not a geographic area but rather a value: citizens were asked to ally in the defence of their civil liberties.25 Today, the definition of the term “defence” comprises besides a principal selfdefending combat mission, the guarding of military objects, the ensuring of undisturbed service and training of the soldiers.26 The mission of the German Armed Forces is however principally limited to defence in accordance with Article 26 I of the German Basic Law and the inherent commandment of peace. The definition of 25

This historic approach was fallen back upon during discussions concerning a statement of the former Minister of Defence Peter Struck to defend Germany also at the Hindukush. 26 Pieroth, in: Hans Jarass, Bodo Pieroth “Grundgesetz f€ ur die Bundesrepublik Deutschland”, Article 87a, margin no. 9.

I. Frame of Reference: Germany’s Principle of Strict Separation

11

Article 115a I 1 of the basic law prescribes an armed attack, originating from an external source.27 Yet this scenario is today perceived as solely one among others within the present notion of the term “defence”. The term “defence” comprises – beside national defence – also alliance defence as per Article 5 of the North Atlantic Treaty as well as the individual and collective self-defence as per Article 51 of the UN Charta.28 These missions have thus to be distinguished from humanitarian interventions and peace support operations, both of which are not regarded as defence-related missions and are consequently not subsumed under the term of defence.29 However, humanitarian missions as well as peace-support operations mandated by the United Nations or NATO are admissible as per Article 24 II of the German basic law. Due to Germany’s constitutional tradition as stipulated in the provisions of Article 115a V, Article 115b, Article 115l III, and Article 87a III, every military operation (“Einsatz”) has to be consented by parliament by means of a law or a resolution complying with the requirements of Article 42 II.30 To shorten this rather complicated procedure, a Parlamentsbeteiligungsgesetz was enacted, aiming at a higher degree of flexibility and a general simplification of this process.31 The acrimonious debate concerning a possible extension of the term “defence” to cover terrorist attacks within Germany and whether to allow for a deployment of armed forces on the national territory shall however not be part and parcel of this evaluation.

bb)

Contribution to Systems of Mutual Collective Security

A deployment within the scope of such a system carries an inherent limitation of power due to the transfer of control to international organisations over the forces concerned. It comprises the performance of obligations deriving from the membership, e.g. combat missions as far as UN missions are concerned. Based on this provision, foreign assignments are conducted. However, operations of armed forces are only permissible if authorised by the Bundestag. This principle derives from the military constitution of the Basic Law and draws upon the constitutional tradition since 1918 to take the general principle of a parliamentarian army from the articles 45a, 45b, 87a I 2, 87a IV 2, and 115a I of the constitution.32 In particular, the Federal Constitutional Court refers to Article 59a I 1 27

Due to the systematic relation to Article 87a IV of the basic law. Cf. the decision of the Federal Constitution Court of June 21st 2005, BVerwG 2 WD 12.04, see http://www.bverwg.de/media/archive/3059.pdf, visited May 29th 2010. 29 Brenner/Hahn, JuS 2001, p. 732. 30 See decision of the Federal Constitutional Court BVerfGE 90, 286/388. 31 Florian Schr€oder “Das neue Parlamentsbeteiligungsgesetz”, in: NJW 2005, p. 1406–1411. 32 BVerfGE 90, 286, 381 ff; see also BVerfG, 2 be 5/99 of March 25th 1999 ¼ BVerfGE 100, 266 ff; BVerfG BvQ 18/03 of March 25th 2003 ¼ BVerfGE 108, 34 et seq. 28

12

A Comparative Law

as amended by the Law of March 19th 1956.33 Though this provision has by now been repealed, it contained the parallel regulation that a deployment of the armed forces within the scope of a state of defence was subjected to an approving resolution of the Bundestag.34 According to the Federal Constitutional Court, the implementation of the Basic Law Emergency Provision and the subsequent repeal of Article 59a should not have a bearing on this principle.35

cc)

Regional Disaster Relief

Another field in which a federal state could request the assistance of armed forces is the supporting of police and other forces of disaster prevention in cases of grave accidents or natural disasters. The Grundgesetz allows in such a case that a federal state may request a complying deployment of armed forces, provided that the Land is unable to cope with the event with its own forces and despatches a demand note. This procedure served as a legal basis during the events of Ramstein in the year 198836 or Eschede 199837 and is laid down in Article 87a II in connection with Article 35 II 2 of the German Basic Law.

dd)

National Disaster Relief

In case of the natural disaster or severe accident crossing the border of one Federal State, the Federal Government can, under the terms of Article 87a II and Article 35 III Grundgesetz, instruct the State Government to bring the Bundeswehr into action. Examples are the snow catastrophe in Lower Saxony and Schleswig-Holstein during winter ´78/´79, the flooding of the Oder in the year 1997 and the Elbe 2002. In contrast to regional disaster relief, the constitution stipulates an instruction of the federal government of how the local authorities are to deploy the armed forces. The implementation takes place in close reconciliation with the police forces concerned. Measures of the federal government have to be immediately stopped on demand of the Bundesrat, at latest however after elimination of the danger.

33

See Federal Law Gazette I. p. 111. 17th Law on the Amendment of the Basic Law of June 24th 1968, see Federal Law Gazette I. p. 709. 35 See BVerfGE 90, 286 (382 et seq.). 36 During a military airshow in Ramstein, Germany, two participating Aermacchi MB-339 FD crashed during a mid air collision. In the aftermath of this event, 70 people, most of them civil spectators died while 450 were injured. 37 101 passengers were killed and 120 injured during the event of a train accident in Eschede, Germany. 34

I. Frame of Reference: Germany’s Principle of Strict Separation

ee)

13

National Emergency

Measures in case of a national emergency are based on Article 87a II in connection with Article 87a III of the German Basic Law. Precondition is the declaration of a state of defence in the sense of Article 115a or a state of tension as stipulated in Article 80a of the Basic Law. An alliance defence situation is however not sufficient to justify extended responsibilities of the armed forces. This comprises times of increased international tensions, times in which armed conflicts are at least possible and which call for a heightened preparedness for defence. Additionally, a declarative statement with a 2/3 majority of the members of the Bundestag upon request of the federal government is required. The measures at choice comprise the protection of civil objects as well as traffic regulation and control to the extent required to meet the demands of the defence mandate. In addition, a protection of civil objects with no relevance for the defence mandate is possible as far as these accompanying steps support the measures of the authorities concerned.38

ff)

Internal State of Emergency

Provided that an imminent danger threatens the existence or the free democratic basic order of the Federation or a Land as per Article 87a II and Article 87a IV of the basic law, the Federal Government may use the Bundeswehr to support the forces of police and Federal Police to protect civilian property. In addition, the Land may not itself be able to cope with the threatening danger, e.g. in cases where forces of Police and Federal Police do not suffice. Thus, a deployment of armed forces is strictly subsidiary and clearly can only be taken into consideration at the climax of a scenario of escalation. The federal government can use the armed forces to guard civil objects in support of the police and federal police forces as well as in the countering of organised and militarily armed insurrectionists. Again, the employment has to be suspended upon request of the Bundestag or the Bundesrat.

gg)

Administrative Aid

Apart from that, possibilities to insert the armed forces outside their genuine scope of duty can be created by the instrument of administrative aid. This happens primarily in cases of other authorities requiring capabilities of the armed forces to fulfil their own tasks. However, the armed forces may not be deployed in fields that belong to the genuine tasks of the requesting authorities. Hence, an operation within 38

Bodo Pieroth in “Grundgesetzkommentar” Hans D. Jarras, Bodo Pieroth (Eds), 8. Edition, Munich 2006, Article 87a, margin no. 12.

14

A Comparative Law

the scope of general prevention of danger or criminal prosecution for instance is inadmissible. At all events, the Bundeswehr can hold instruments and special equipment available. This is common practice in cases of missing persons, where accordingly equipped aircrafts support police authorities in their search or the leaving of quarters to police forces during their operations.39 In all abovementioned fields, the Bundeswehr therefore holds only a supporting function. That connotes, that the fundamental competence remains with the police, e.g. forces of disaster prevention. For one thing – argumentum e contrario – this implies that the Bundeswehr is unable to determine what kind of measures to adopt to avert any dangers, for another that the operations are subjected to a time limit. Thereby, a permanent competence of the military will by no means be created.

hh)

Police-Related and Other Missions to Avert Dangers

Article 87a II in connection with Article 87a III 1 of the Basic Law allows the armed forces to fulfil certain genuine police related tasks parallel to the police forces. These range from guarding civil objects with a military relevance to traffic control during a state of defence or a state of tension providing for a back up of logistics. Thus, emphasis has to be placed on the fact that these tasks are needed to fulfil the first and foremost mission of the armed forces, the defence of the nation. This connotes, that the Bundeswehr is authorised to guard their barracks against civil disturbers, ensuring a duly military operation. Legally based are these mission on the principle of self-protection of the armed forces according to which nuisance to military concerns are to be fought by military means. While the external protection is assigned to the police forces, the internal safeguarding of military perimeters is mission of the armed forces. This does also apply to NATO forces. In accordance with Article VII, 10 a of the Statute of Forces Agreement (SOFA), the forces of the receiving state can – on request of the occupying forces – police any camps, establishments and premises. Legal foundation for the takeover of the safeguarding is in this case } 2 II 1 UZwGBw.

ii)

Defence Policy Guidelines

Defence Policy Guidelines are drawn up by the Planning Staff of the Federal Ministry of Defence taking actual developments into account and serving as basic parameters for further planning documents.40

39

This was exemplarily conducted during police operations guarding Castor Transports within Germany. 40 Previous Defence Policy Guidelines date from 1992, prior to which two versions had been published in 1972 and 1979.

I. Frame of Reference: Germany’s Principle of Strict Separation

15

The major change in the European and even worldwide security environment urgently called for a review and reorientation of Germany’s stake in security and defence policy.41 While national defence in its traditional sense became downgraded in view of a precedence rating and is now only one of several vital topics such as response to international conflicts, asymmetric threats, terrorism and WMD, all these in concert are marking today’s focus of German security issues. This change in threats consequentially led to a change in tasks for the Bundeswehr: The future focus lies on conflict prevention and crisis management operations, ideally together with allies and partners in EU and NATO, integrated into the multinational environment of the UN and the OSCE. This posture was also assumed by the former Federal Minister of Defence Peter Struck and was clearly demonstrated on the occasion of the presentation of the Defence Policy Guidelines.42 Only condition however is the indispensable ability to conduct national defence operations and that such operations can be reconstituted within a “foreseeable, albeit prolonged, period of time”.43 The new missions of the Bundeswehr are now phrased as to protect Germany and its citizens against political extortion and external threats, to promote military stability and European integration, to defend Germany and its allies, to support world peace and international security in accordance with the Charter of the United Nations as well as to assist during catastrophes and distress situations and to support humanitarian operations.44 Still, conflicts of the past have shown that borderlines between the various types of mission are blurring. While a general strategic comprehension rates the different forms of peace-support operations as tasks of crisis management, their extent, duration and intensity can by all means match a classic alliance defence situation.

jj)

White Paper

Four years passed since the publication of the last White Paper on the Security of the Federal Republic of Germany. Focal point of the latest draft are the globalisation and the dramatic changes in the international environment which led to a continuous blurring of the spheres of internal and external security. Specifically 41

Defence Policy Guidelines for a Changed Security Environment, Defence Policy Guidelines, p. 3, I. 1. 42 “Traditional national defence can no longer primarily determine the structures and capabilities of the Bundeswehr, for there is no apparent conventional threat to German territory at present and in the foreseeable future”, Federal Minister of Defence, Dr. Peter Struck during the Federal Press Conference presenting the Defence Policy Guidelines on May 21st 2003 in Berlin. 43 Defence Policy Guidelines, Part II (Key Statements), 12, p. 4. http://www.bmvg.de/fileserving/ PortalFiles/C1256F1200608B1B/W268AHEH510INFOEN/VPR_en.pdf?yw_repository¼youatweb, visited May 27th 2010. 44 See the report of the Commission “Gemeinsame Sicherheit und Zukunft der Bundeswehr”, May 23rd 2000, p. 47.

16

A Comparative Law

mentioned is also the fight against international terrorism and the shortcomings of traditional strategies to counter asymmetric threats as well as the future requirement to enhance coherent cooperation on both national and international levels. As to the maintenance of the principle of strict separation between the armed forces and the police forces, the White Paper does not stray from the path of tradition. Due to the constitutionally determined general mission of the armed forces, the White Paper only serves as a guiding principle or a catalogue for the specific mission of the Bundeswehr. According to the White Paper, the missions of the Bundeswehr comprise to guarantee the capacity for action in the field of foreign policy, to contribute towards European and global stability, to maintain national security and defence, to provide assistance in the defence of our allies, and to foster multinational cooperation and integration.45 Despite that the defence of national security is mentioned only as the third point, the White Paper refers to it as the constitutional core function. Additional functions comprise international conflict prevention, crisis management, fight against terrorism, protection of German territory and citizens, SAR operations as well as subsidiary assistance. Subsidiary assistance in turn covers legal and administrative support, help in the wake of natural disasters and particularly grave accidents.

kk)

Mandated Missions

During a mission mandated by the United Nations on a foreign territory, the separation between German Armed Forces and police forces is not necessarily upheld as it is on the national territory. Corresponding exceptions on this sector can be determined by the United Nations by binding participating forces to fulfil police related tasks subsequent to a joint military operation. Thus, the military is not only responsible for a restoration of order but also for the consequent preservation of order. A variation of this concept, allows for a combination of police and armed forces during the period of transition in a trouble area. Tender spot in this discussion is the consequential question whether this interleaving of missions, broadly experienced for example in Kosovo, could as well be realised on German territory. Though this opinion acquired some vogue within certain political spheres, most academics do not meet this idea with approval. Instead, a prevailing opinion proceeds on the assumption that non-military risks should not fall into the scope of military responsibility. Justified is this point of view with the specific historical background of Germany that led to the present legal position.

45

White Paper on the Security of the Federal Republic of Germany and the Situation of the Bundeswehr, part 2, 3.1, see: http://www.bmvg.de/fileserving/PortalFiles/C1256EF40036B05B/ W26UWAMT995INFODE/W%202006%20eng%20DS.pdf, visited May 27th 2010.

I. Frame of Reference: Germany’s Principle of Strict Separation

b)

17

Military Police

The Feldj€ ager are the military police of Germany and thus part of the Joint Service Support Command. Besides being a central point of contact for members of the Bundeswehr seeking assistance, main missions comprise the maintenance of military discipline and order, military traffic control, security operations and investigations. The Feldj€ ager’s primary aim of executing security operations is to prevent offences against the Bundeswehr and to eliminate illegal disturbances of actions and operations of the Bundeswehr, e.g. official ceremonies. Feldj€ ager are also assigned the mission of guarding allied armed forces in Germany, escort and provide personal security protection for high-risk Bundeswehr officials, safeguard conferences and exhibitions and generally safeguard military property. Likewise, the support of military courts of justice, the returning of stragglers and apprehended soldiers as well as the assistance in collecting and transporting of prisoners of war belong to their scope of responsibility. Members of the Feldj€ ager also secure the joint operations centre of command post of large formations and provide support to arms control operations. By virtue of the Law on Immediate Coercion, Feldj€ ager are authorised to stop, examine, search and temporarily arrest persons, seize objects, apply immediate coercion, and use firearms.46 This authorisation is not limited to regular Bundeswehr landed properties but comprises also temporarily cordoned-off areas such as fields and squares. Though the Feldj€ ager have principally no direct authority over civilians, they are entitled to performing their duties and enforcing their rights within such areas. Investigations and inquiries are another field of responsibility of the Feldj€ ager. Assisting in the investigation of military offences and reporting serious accidents with military involvement are typical duties within this field. In addition, the Feldj€ ager maintain dog teams to be deployed as patrol dogs and sniffer dogs to assist in the search for explosives and drugs. These teams form a typical component of overseas deployments since the units are frequently engaged in multinational police units. In fact, the focus shifts from a mere monitoring of German forces to the wider field of cooperation with local authorities. Likewise, foreign deployments regularly entail particular tasks such as house searches for illegal weaponry and explosives, airport security or crowd and riot control.

c)

Police

Though the concept of “police” has been subjected to multiple modification and alteration against the background of the social developments during the last centuries, the present mission of the police is statutorily regulated and limited. 46 See measures enumerated in Chapter 2 and 3 of the “Gesetz €uber die Anwendung unmittelbaren Zwangs und die Aus€ ubung besonderer Befugnisse durch Soldaten der Bundeswehr und verb€undeter Streitkr€afte sowie zivile Wachpersonen” of August 12th 1965, subsequently amended.

18

A Comparative Law

In general, the mission is characterised by a two-tiered approach according to which the traditional form of policing is preventive action. In addition, police forces are bound to a large extent as a resource to the public prosecution department, consequently acting as a repressive instrument. Due to the principle of federation, the organisation of the police forces in Germany is basically decentralised. This holds true for all police forces except for the Federal Police and the Federal Crime Office, which are centralised and subordinate to the Home Secretary. Generally, the German police forces are divided into two branches. While uniformed or patrol police mainly deal with general public security functions, traffic violations and cases of minor and medium crime, the criminal investigation police mainly deal with offences of higher intensity. Functionally, the police forces are branched into the protection police dealing with tasks concerning the maintenance of public security and order, general prosecution and supervision of road traffic; the traffic police supervising moving traffic, recording of accidents and traffic control; the criminal police specialised on the prevention and prosecution of crimes and offences; the mobile or emergency police supporting police actions during extraordinary events such as natural catastrophes or demonstrations and the water protection police, responsible for water and shippingrelated criminal prevention, environment protection and traffic safety on waterways. Other official authorities with investigative mandates are the Customs, Tax Officials, Military Police, and Federal Police with similar investigative powers, however based on a different legislation. As part of the executive force in Germany, the jurisdiction concerning the police depends on the 16 different laws of the federal states according to which the police forces are tasked with slightly varying assignments.

aa)

Preventive Action

Preventive Actions are centre-stage missions of the police forces. Following the proposition of the draft of the Conference of the Ministers of Interior, the task of the police was defined as to avert dangers threatening public security and order. As the original task of the police forces it constitutes the fundamental mission of all German police forces. In accordance with its name, these actions are of an inherently preventive character to avoid the occurrence of damage, not to remedy already occurred damages. Consequently, preventive actions take place beforehand the impending damage. This averting of danger aims at a safeguarding of public security and order.47 However, it underlines that repressive actions for the purpose of prosecution were not always among the pristine tasks of the police.48 47 Wilhelm Knelangen and Jan C. Irlenkaeuser “Die Debatte €uber den Einsatz der Bundeswehr im Inneren”, in Kieler Analysen zur Sicherheitspolitik, No. 12, March 2004, p. 4. 48 Gregor K€amper “Organisation und Aufgaben der Polizei in Deutschland: ein aktueller € Uberblick” Kriminalistik, 56 (2002) p. 102–111.

I. Frame of Reference: Germany’s Principle of Strict Separation

19

The term public security comprises the protection of the objective legal system, the State and its institutions as well as the subjective rights and interests of the individual. Meanwhile, the term public order comprises the collectivity of norms within the framework of the constitutional order concerning the behaviour of the individual in public as deemed indispensable for an orderly community life. Especially latter term has been subjected to constant change in perception and definition, relative to altering socio-ethic views. To meet these requirements, the federal states enacted individual police laws, seizing the suggestion of the Conference of the Ministers of Interior and assigned hazard control and the prevention of crime to their police forces. The preventive actions are however limited to secondary prevention involving patrolling, prevention and counselling measures and projects in community crime prevention. Secondary measures of crime prevention comprise, e.g. the gathering of information and the storage of relevant data.

bb)

Repressive Actions

Besides preventive actions of the police to avert damages, modern police forces in Germany play an important role with far-reaching authorisations in the field of repressive actions. Binding obligation of the police forces to contribute to the investigation and identification of offenders and offences is stipulated by virtue of } 163 of the Code of Criminal Procedure. However, the police are assigned only an assisting role in these activities, rendering it an auxiliary organ of the prosecuting authorities. Powers of the police during repressive actions are conclusively determined by the Code of Criminal Procedure and comprise temporary detention, taking possession of items, monitoring telecommunications and conducting searches. While conducting related measures, the police are bound to the principle of legality, obligating them to observe and prosecute relevant acts of crime.

d)

Federal Police and the Late Federal Border Police

Under the terms of } 1 2 BPolG, the Federal Police is considered as a police force of the federation. This characterisation has been subjected to a constant controversy due to the tension of the disputing sovereignties the Federal Border Police was experiencing for some time following its establishment. Both the former BGS and today’s Federal Police are independent police bodies.49

G€otz, “Die Sorge f€ur die € offentliche Sicherheit und Ordnung”, in Deutsche Verwaltungsgeschichte, ed. by Jeserich, Pohl, von Unruh, vol. 5, Die Bundesrepublik Deutschland, p. 426–450 (441). 49

20

aa)

A Comparative Law

Historical Development and Original Mission

The Federal Border Police arose from of a special type of police forces like the 1809 founded Prussian Gendarmerie, later referred to as Landj€ ager. These were under the command of the War Office while their deployment only occurred on demand and under supervision of civil authorities. This Gendarmerie was responsible for the rural areas and was supposed to relieve the police power of the squires. As in other countries, the German Gendarmerie played a double-role until 1919, one of being under the discipline and command of their military principal while taking responsibility for their public services and commercial relations to the civil authorities both at the same time. In the past 1919 era, the Gendarmerie lost most of its military character and became integrated into standard uniformed police. The German Bundesgrenzschutz50 was created in the early 1950s as a paramilitary51 force to secure the demarcation line against incursions from the East. It had a highly centralised military style organisation and a broad array of military equipment to choose from. Its weapons stockpile included small tanks, grenade launchers and heavy machine guns over the intervening years. But even though its officers were accorded the official status of combatants, it has always been perceived closer to the police than to the armed forces. Such a perception was intensified by the subsequent course of the German history, during which the Federal Border Police lost most of its weaponry, changed into an anti-riot police and was given a more police-like structure. Nevertheless, it is undisputed that the Federal Border Police used to have a more military character in the past. This is due to the fact, that already the formation was closely connected to the tenseness that brought the beginning of the Korean War and the general East-West conflict. This brought in its wake the first attempts of contributing Germany’s share to a military defence. Beside that, the first officer corps was composed of former officers of the Wehrmacht. It was the development of the BGS officers having military ranks until 1976 that intensified a military impression. The first military units of the Bundeswehr were then composed of former BGS officers. All these properties made the BGS appear rather militarily profiled than bearing police qualities. Yet it is a frequently emerging misunderstanding or misconstruction, that the Federal Border Police was established ab initio as a surrogate to the regular armed forces. Under the leadership of Konrad Adenauer, deliberations to establish a central police body rather than the wish for an early rearmament led to the foundation of the BGS. In addition, allied military governors guarded very intensely and suspiciously the strict strategy of demilitarisation, whereas the forerunners of the Cold War scenario with its fragmentation into blocks could no longer be overlooked. While a distinctive resistance against a centralised police body or even a military prototype was widely spread within the population, an especially pronounced opposition was experienced within

50

Since the official name of the Bundesgrenzschutz has recently been changed into Federal Police, the abbreviation “BGS” as used in this document is accordingly outdated. 51 The term “paramilitary” used in this context refers to state-controlled security forces only.

I. Frame of Reference: Germany’s Principle of Strict Separation

21

the federal states that feared such a centralised police force under the sole command of the federation. Even after the New York Conference of September 1950 whereby Western Foreign Ministers pronounced against a federal police, but declared themselves in favour of mobile reserves of the states, several states showed no interest in such an expansion.52 It was again the insistence of Konrad Adenauer that led to an establishment of a federal border guard authority by taking the opportunity of Article 87 I of the basic law. Still, the allied powers surmised the motive of rearmament but were eventually convinced of the inherent benefit of the establishment of the border guard: the relief generated by the Federal Border Guard taking responsibility for local border incidents along the 1,300 km border to the Soviet zone of occupation on board, enabled the allied powers to withdraw their own troops needed by then for other tasks in other parts of the world.53 Being in fact the raison d´eˆtre of the Federal Border Police, the efforts to demilitarise Germany finally failed, ringing in the outbreak of the Cold War and the erection of the iron curtain. Whereas the military vacuum on Germany’s territory was once desirable, the foreseeable conflict potential brought in its wake a gradual transition towards a mental and de facto rearmament. The vital role that the Federal Border Police played in this context is often referred to as that of an obstetrician, giving birth to the German Bundeswehr. By sharing its personnel and giving approximately half its officers to the new Bundeswehr, the BGS made the creation of German armed forces possible, though the circumstances under which the transfer of personnel was finally exercised were controversial and repeatedly criticised as questionable. But even after political objections were calmed or swept out of the way and a general understanding of the value of such a transfer was achieved within the responsible circles, questions concerning the procedure remained. An en bloc transformation was ineligible due to legal impediments while the same applied to a complete transformation of squad personnel. An unregulated transfer of staff on the basis of individual applications was prevented by a legal agreement between the ministry of defence and the ministry of interior. In summer of 1956 a law was finally passed, regulating the modalities of a transfer of personnel to help building up the German armed forces. Though encouraged by increased chances to advance in their career and by an adjustment of payment, nearly half of the BGS members decided to remain within the Federal Border Police organisation. With a solemn appeal and a great tattoo, the original BGS ceased to exist on July 9th 1956 in Bonn. The remains of the BGS were subsequently refilled while the ex-BGS nucleus within the Bundeswehr soon proved to be indispensable for the endeavours in bringing the armed forces into operation. Subjected to regular misunderstanding or even misconstruction, the BGS was only on paper the progenitor of the later Bundeswehr.

52

Bernd Walter “Der Bundesgrenzschutz der Bundesrepublik Deutschland – Sonderpolizei von ¨ MZ 5/2005, p. 643 et seq. Anfang an oder urspr€ unglicher Streitkr€afteersatz?” O 53 Heesen/H€onle/Peilert, “Kommentar zum Bundesgrenzschutzgesetz, Verwaltungs-Vollstreckungsgesetz und Gesetz € uber den unmittelbaren Zwang”, } 1, p. 36, margin no. 3.

22

A Comparative Law

In fact, it merely served as precursor by contributing enforcement officers to the young Bundeswehr, permitting it to perform a smooth start into a new era.

bb)

Present Mission

On April 22nd 2005, Home Secretary Schily introduced a bill, which consequently led to a change in names. As from July 1st 2005, the Bundesgrenzschutz is officially called Federal Police. Due to the evermore advancing shift of tasks, the new name describes the mission more precisely. According to the common material concept and comprehension of the police, the main mission of the Federal Police is laid down in } 1 V BPolG and is thus the averting of dangers and the general safeguarding of relevant objects of legal protection. In concordance to the varying laws on the police of the federal states, this comprises the public security and order.54 However, the Federal Police is restricted in its averting of dangers to a certain catalogue in the BPolG, drawing a distinction to the police forces of the federal states that are responsible for the averting of general dangers. Though the safeguarding of personal legal interests is also part of the public security and thus task of the Federal Police, it only is appointed to the safeguarding of such personal legal interests in specific cases where the system of ordinary courts is unable to avouch for its protection. Corresponding to the principle that the protection of individual legal interests by the police is subsidiary to judicial protection, comparable provisions can be found in the laws on the police of the different federal states.55 Yet it seems noteworthy, that activities of the Federal Police are not limited to averting dangers but that also repressive actions in terms of }} 161, 163 STPO are permissible. Such repressive actions may be induced due to an own competence of the Federal Police under certain preconditions. While the functional competence derives from } 12 I BPolG, a regional competence is defined in } 12 II BPolG. Due to the specific nature of the Federal Police, its actual competences are however somewhat limited compared to those of the police forces in the federal states.56 Since the German legislature may assign additional responsibilities to the Federal Police provided that the Federal Police can draw upon a competence of the Basic Law, the responsibility in question is not assigned to a different administrative authority and the assignment of the responsibility does not contradict the general imprint of the Federal Police, a establishment of a police force competing with the

54

The term “public security” is regularly defined as the protection of the individual interests and objects of legal protection, the existence of the nation, its facilities as well as the legal order while “public order” refers to all unscripted rules and provisions, vital to an orderly community life. 55 For a thorough review concerning the various perceptions of dangers in the federal states and the Federation, see Franz-Ludwig Knemeyer, “Polizei- und Ordnungsrecht”, p. 59 et seq. margin no. 87. 56 Michael Winkeler “Von der Grenzpolizei zur multifunktionalen Polizei des Bundes?” p. 28 et seq.

I. Frame of Reference: Germany’s Principle of Strict Separation

23

police of the federal states is ruled out.57 This limitation of responsibilities in respect to the police forces of the federal states is characteristic for both the late Federal Border Police and the Federal Police of today. One prominent mission of the Federal Police is the fulfilment of tasks relating to terrorist activities as well as to violent and organised crime by the Border Protection Group 9 (GSG9) that was established on September 26th 1972 in the aftermath of the assault on Israeli Olympic team in Munich.58 Further multifaceted missions of the Federal Police are assigned by virtue of } 1II BPolG, such as extending the field of responsibility to tracing offences committed on the continental shelf, offences in the context of passports, aliens law or weapons law. Although the Bundesgrenzschutz started with the sole mission of guarding the border to the East, the present mission of the Bundespolizei also comprises the patrolling of 14 international airports and railway stations as well as the guarding of constitutional organs of the federation, criminal prosecution and the tracing of regulatory offences in its field of duty. Furthermore, today’s tasks also include the guarding of German diplomatic and consular missions abroad, foreign stations of the Lufthansa and the general execution of police related missions abroad. The Federal Police also supports the Federal Criminal Police Office in the field of personal security and fulfils tasks on the North and the Baltic Sea, including environmental protection. Hence, it is comprehensible that besides a change of name, an adaptation to present needs and changed requirements was concluded.

cc)

Additional Mission: International Police Operations

Besides collaboration in security issues within the national territory such as the Aviation Security Act, another possibility for practiced cooperation of police and armed forces are peacekeeping operations abroad.59 Deployments of international police contingencies are consequently among the most important elements of the Civilian Crisis management of the EU.60 Following the results of the Feira summit, the heads of governments of the member states engaged themselves to building a

57

BVerfGE 97, p. 198–228. Paul Wilkinson “Terrorism versus Democracy. The Liberal State Response”, Second Edition, London 2006, p. 66. 59 An overview over various tasks of the Bundesgrenzschutz and the Federal Police outside the national territory and related legal discussions is given by Wiefelsp€utz, Dieter and M€ullers, Martin H. W.; van Ooyen, Robert Chr. (eds), “Der Einsatz der Bundespolizei im Ausland”, Europ€ aisierung und Internationalisierung der Polizei, p. 207 f. 60 The civilian aspects of Civilian Crisis Management, see http://www.consilium.europa.eu/ uedocs/cms_data/docs/pressdata/EN/foraff/113996.pdf, visited May 27th 2010. 58

24

A Comparative Law

European police contingency consisting of up to 5,000 officers to the year 2003.61 According to the emphasised political prominence of non-military crisis management abroad, the German Government decided to hold ready a total number of 910 police officers, 90 of which being designated for rapid deployment missions under the aegis of the European Union. Since 1989, the Federal Police – partially under its former designation Federal Border Police – participates in international peace operations. In the course of this engagement, more than 4,500 police officers and 1,700 officers of the Federal Police took an active part in these voluntary assignments. In the year 1994, the federation and the states joined forces in a common task force “International Police Task Force”.62 To the present day, German police officers attended 15 missions of the UN, EU, OSCE and the bilateral police project in Afghanistan.63 The legal foundations of such missions are either resolutions of the UN Security Council, joint actions adopted by the European Council or under the aegis of an international organisation, e.g. the OSCE after decision of the federal cabinet.64 In 2006, the Federal Republic of Germany participated with a total number of 110 police officers in eight international missions, mandated by the UN or the EU.65 During their abode abroad, the Federal Police officer’s salary is continuously paid by the Federal Police66 while additional costs attributable to the stay abroad are accounted to the Foreign Office67 respectively to the Federal Ministry for Economic Cooperation and Development.68 Participating officers of the federal states are subordinated to the ministerial portfolio of the Ministry of Home Affairs for the duration of their mission abroad.69 Their salary is continuously paid by the states while the Foreign Office accepts the costs deriving from the foreign character of the mission. Another 17 officers are currently running a German Project Office in Afghanistan, based on a formal request of the UN and Afghanistan and a subsequent counselling mandate to assume a leading role in police training. In addition, German Federal

61

See “Presidency Conclusions - Santa Maria Da Feira European Council”, June 19th and 20th 2000; http://ue.eu.int/ueDocs/cms_Data/docs/pressData/de/ec/00200-r1.d0.htm, visited May 27th 2010. 62 This task group is referred to as the AG IPTF. 63 Officers of the Federal Police took part in missions like UNTAG, UNTAC, MINURSO, DANUBE, PROXIMA, EUPM, UNMIK and UNMIL. 64 See Blumenwitz in BayVBl 1994, p- 678 f for a closer examination of the issue. 65 Status quo as of January 25th 2006, supplied by the Ministry of Home Affairs comprising following missions: UNMIK (87), UNOMIG (3), UNMIL (2), EUPM (6), EUPAT (1), EUAMIS (2), EU BAM Rafah (4), EU BAM (5). 66 According to Chapter 0625 of the Budget Act. 67 According to Chapter 0502 of the Budget Act. 68 According to Chapter 2302 of the Budget Act. 69 Following the provision } 123 BRRG.

I. Frame of Reference: Germany’s Principle of Strict Separation

25

Police Officers conducted training and exercising of Iraqi police forces in the United Arab Emirates, though this was not an international police mission. Mission of the officers in international police operations is to support civil components to strengthen existing or to establish new police structures, following the rule of law.70 The legal basis for such a mission abroad arises from } 8 I of the Law on the Federal Police, giving the Federal Police opportunity to engage in nonmilitary missions on request and account of the United Nations, a regional agreement according to chapter VIII of the Charta of the United Nations, the European Union or the West European Union. Though some academic discussion was raised on whether the executing of tasks abroad would be of an exceptional character to the principle of the police sovereignty of the federal states, a broad consensus retorts this question as negligible due to the very specific nature of operations abroad where national principles are not generally effective.71 The application of the Federal Police requires the consent of the state on whose sovereign territory the mission is supposed to take place. The decision to deploy is taken by the government, while the Bundestag has to be informed about the intended application. By formal request, the Bundestag can demand the termination of the entire mission. By analysis of the mandate and the corresponding missions planning and specifications, the non-military character of the mission needs to be guaranteed. The German police contingent may only be applied in a safe environment as element of the civil component of the mission, fulfilling exclusively nonmilitary tasks. As direct consequence of the subordination of the police to a civilian command, any subordination to a military command or a participation in military tasks is ruled out. However, close cooperation, coordination and communication between armed forces and the civil crisis management including police forces are considered as vital for a successful mission.72 In fact, arduous efforts are being made to enhance such skills of both the military and the police forces. Exemplary are the riots of March 2004 in Kosovo after which corresponding conclusions were drawn.

70

For information concerning specific missions, refer to the statement of Under Secretary of State, Lutz Diwell, BT Drs. 15/5993 p. 8 et seq. 71 Some voices however point to problematic issues of a foreign deployment of the Federal Police on the basis of $ 8 I of the Law on the Federal Police, see Fischer-Lescano, A€oR Bd. 128 (2003), p. 52. Since the Federal Constitutional Court itself cited the provision } 8 I of the Law on the Federal Police in its findings of BVerfGE 97, p. 198, it is understood, that no concern towards the constitutionality of the provision exists. 72 Final Report of the Subcommittee “Weiterentwicklung der Inneren F€uhrung” concerning a briefing on the Special Report “Erfahrungen der Bundeswehr beim Auslandseinsatz im Kosovo unter Ber€ucksichtigung der M€arz-Unruhen 2004”, Ausschussdrucksache 15. WP No. 15(11)544 of June 15th 2005, p. 8

26

e)

A Comparative Law

Other Forms of Cooperation Between Police and Armed Forces and Exceptions

Besides the above-depicted constitutionally authorised types of cooperation between police and armed forces, some prominent examples have been under discussion in Germany. One important attempt to allow for a deployment of the armed forces within the national territory was the Aviation Security Act.73 In the light of the above-illustrated provisions of the Basic Law, the core point of a debate launched by the terrorist attacks on the World Trade Centre in New York was consequently the question of how to combine the Aviation Security Act with these constitutional limitations. Since the armed forces are only allowed to support police forces in performing their tasks, the act of supporting is limited to cases in which damage has already occurred or is imminently pending. In addition, any supporting act needs to be objectively required. These provisions are to be at least partly circumvented by the government by altering the definition of “defence” as well as by enacting the Aviation Security Act, thus trying to alter the allocation of responsibilities. However, the Federal Constitutional Court, mainly based on the aspect that balancing of one human life against another was not permissible, rendered the Act unconstitutional.74

II.

Separation Within Europe

The following section outlines the separation of armed forces and security forces within the neighbouring states. As in Germany, it is undisputed, that European armed forces have a different role to play than the various residually security forces.

1)

The Division of Labour

In most European States, the borderline between the mission of the armed forces and of the police runs somewhat differently than it does in Germany. In what way will be shown by the following analysis of the distribution of tasks and the division of labour between the security forces within the European Union Member States.

73 “Gesetz zur Neuregelung von Luftsicherheitsaufgaben”, enacted January 11th 2005, published in the Federal Law Gazette Part I Nr. 3, p. 78. 74 See the decision of the Federal Constitutional Court BVerfG 1 BvR 357/05 of February 15th 2006.

II. Separation Within Europe

a) aa) aaa)

27

European Union Member States Austria Armed Forces

The permanent tasks and objectives of the Austrian Armed Forces are determined by a Federal Constitutional Act, according to which military defence of the national territory outlines the primary and core task of the armed forces. Though this assignment first and foremost aims at a defence against external threats, it may also refer to threats arising from internal developments that are however linked to external threats and are opposable only with military means. Additional tasks of the armed forces need to be determined by constitutional law. Sole additional task at present are assigning foreign operations to the armed forces.75 Thus, permissible activities of the Austrian Armed Forces are confined to the limits of the aforementioned constitutional tasks. The original version of the Federal Constitutional Act of October 1st 1920 took a very broad view of the mission of the armed forces, assigning to them not only the military defence of the national territory and the control of the borders but also a distinct role in guaranteeing internal order. Underlying this wide conception of the mission of the armed forces was a correspondingly broad perception of national defence that overlapped with the field of internal security to a large extend. The tasks of border control and maintenance of internal order derived from the wording of the last paragraph of Article 120 of the Treaty of St-Germaine-en-Laye according to which “The Austrian Army shall be devoted exclusively to the maintenance of order within the territory of Austria and to the control of her frontier”. Federal Constitutional Act Amendment of June 10th 1975 adopted a more limited view of the mission of the armed forces by introducing provisions concerning comprehensive national defence and thus redefining the primary missions of the Austrian Armed Forces. Central concern of said changes was to separate national defence from the defence of internal order. Despite this apparently more restrictive conception of the role of the military, the amendment still allowed for the possibility of being deployed in extraordinary or exceptional situations as in most pluralist countries. By allowing recourse to military measure during extraordinary situations that would normally fall into the category of civil police responsibilities, the law recognised the potential impact of a disruption of internal order or a natural disaster in view of the scale of the repercussions to be estimated. Since the Austrian Armed Forces are being deployed on foreign assignments within the scope of international peacekeeping operations but may also find themselves confronted with riots when rendering assistance to civil police units, basic 75

See sec. 1, para. 1, sub-para. a-c of the Federal Constitutional Law on Cooperation and Solidarity when Dispatching Units or Individuals Abroad.

28

A Comparative Law

CRC training is conducted to maintain order and security within the country for Military Police units, deriving from the regulations governing military assistance to civil authorities respectively the individual RoE. The performance of the duties prescribed by the Constitution as well as the operational and tactical command and control of the Austrian Armed Forces falls within the competence of the Ministry of Defence.

bbb)

Police Forces

As from July 1st 2005, Austria amalgamated the previously separated police units and gendarmerie to a new police force.76 The reason for the largest-ever reform of the Austrian Sicherheitswache was to enhance efficiency while at the same time lessen bureaucracy. Another reason was the need to react to a change of threats and to an advancing internationalism in crime. Its previous 45 units decreased to only nine Landespolizeikommandos. Especially the abrogation of the up to now doubled administration and the pooling of competences are supposed to lead to savings and thus to additional investments for the newly created police force. Recourse to the provisions of the Federal Constitutional Act defines the distinction of the mission of the armed forces in regard to the responsibilities of the police forces since tasks not covered by said provision are not assigned to the armed forces.77 Primary tasks of the police forces are essentially laid out in the Security Police Act of 1991, also outlining the organisation of its authorities.78 According to this Security Police Act, the primary mission of the police forces is to render assistance to citizens if their life, health, freedom or property is endangered.79 Besides, the averting of dangers in general and the counselling for citizens are primary objectives of the police forces.80 Other specific federal and provincial statutes contain cooperation regulations concerning law enforcement agencies and other organs of the Federal Police. Corresponding regulations for the criminal police are stipulated in the Code of Criminal Procedure. In contrast to many other countries, Austria does not hold specialised forces that touch upon the areas of responsibility of the military. The fulfilment of the tasks of the police commands and security agencies falls within the competence of the Ministry of Interior.

76

The decision to review and improve existing structures was reached on March 31st 2003 by Chancellor Wolfgang Sch€ ussler and Home Secretary Ernst Strasser. 77 Article 79 in particular. 78 Security Police Act, Federal Law Gazette BGBl. No. 566/1991, subsequently amended, see http://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR30006187/NOR30006187.pdf, visited May 27th 2010. 79 } 19 of the Security Police Act, supra. 80 } 20 et seq. of the Security Police Act, supra.

II. Separation Within Europe

ccc)

29

Cooperation

Cooperation between armed forces and civil authorities may be performed in several potential ways. The Federal Constitutional Act provides for two circumstances under which such cooperation is admissible.81 First possible type of cooperation is applicable in regard to law enforcement tasks such as the protection of the population’s democratic freedoms, the continuity of constitutionally established institutions and their capacity to operate as well as the maintenance of order and security inside the country in general. Second possible type of cooperation comprises the provision of assistance in the event of natural catastrophes and disasters of exceptional magnitude. Within the specific area of responsibility, authorities and organs of the Federal Republic, provinces and communities are eligible to recourse to the armed forces provided that they are unable to achieve the objectives without the use of force. Corresponding to the Federal Constitutional Court, the units of the armed forces deployed during aforementioned circumstances assume the powers of the requesting authority while operations performed by the intervening military personnel are functionally imputed to the requesting authority. Due to this approach, armed forces do not take autonomous executive action but act on the basis of the legal provisions applicable to the requesting authority and exercise the powers conferred. Though the actual request to provide assistance has the character of a special directive, it does not only comprise tangible instructions. In fact, it obligates the military personnel to observe the command of the civil authorities and subordinates them to civil command structures.

bb) aaa)

Belgium Armed Forces: “Modes d´Engagement Ope´rationels”

Apparently, the armed forces in Belgium do not have a distinctive political role, neither in society nor out of it.82 The prevailing understanding is rather one of a public service with special attributes instead of being an integral part of society. Reason for this is the increasing gap between the military and society since 1993 due to the subsequent transformation into a professional army. Major limitation concerning the scope of possible deployments of the armed forces is the provision prohibiting military engagements against the jus ad bellum. Article 167 (1.2) of the Belgian Constitution determines the King to be the highest commander of the armed forces, whereas it does not include any explicit limitation on the concrete mission of the armed forces. Depending on the classification into certain periods – “pe´riode de guerre” and “pe´riode de paix” – the armed forces can 81

Article 79, para. 2. Pierre d´Argent, “Military Law in Belgium” in European Military Law Systems, ed. by G. Nolte, p. 189. 82

30

A Comparative Law

carry out varying tasks.83 According to Articles 91 and 167 of the Belgium Constitution, the primary mission of the armed forces is to preserve the independence and territorial integrity of the state. The Royal Decree of July 6th 1994 lists various modalities concerning the mission of the armed forces. According to this, permissible tasks of the Belgian armed forces comprise the maintenance of public order within Belgian territory, the execution of observation missions,84 protection missions85 as well as passive86 and active armed engagement.87 Furthermore, some restrictions exist in conjunction with a participation of Belgian troops in peacekeeping operations. After a fatal incident during the MINUAR operation in Rwanda 1994 which led to the tragic death of ten Belgian soldiers, three essential elements have to be complied with. First, the deployment of troops has to be based on a precise mandate, second, a definite Status of Force Agreement is vital, and third, clear rules of engagements are required to ensure an effective self-defence of the forces engaged. Depending on the nature of the concrete crisis management abroad, the operation can all the same be classified as a passive or active armed engagement or merely as an observation mission. Forces being deployed on these missions are considered as being on active duty as far as their operational modality is concerned. Likewise, forces providing assistance or humanitarian aid to a civil population are classified to be on active duty. Though the protection of nationals abroad has long since been an important issue within Belgium’s security deliberations, neither the Royal Decree of July 6th 1994 nor the text incorporating the “Petersberg Tasks” refer to this mission. This fact seems quite at odd with Belgium’s history, since colonies and coherent conflicts traditionally belong to such security considerations. It may be due to some solidarity between European member states, proceeding on the assumption that forces of a member state are now charged with the protection and evacuation of all EU citizens.88 During such a protection mission, the forces engaged are classified as being on active duty.

83

The Law of May 20th 1994 defines the “Pe´riode de guerre” as an international armed conflict between a starting and ending date, being determined by a Royal Decree, deliberated within the council of ministers. Unless the armed forces are in a “pe´riode de guerre”, they are in a “pe´riode de paix”. 84 Observation missions are regularly executed abroad, supervising ceasefires or implementing agreements. 85 Protection missions are aiming at protecting persons abroad, guaranteeing personal safety and free movement. 86 Passive armed engagements or conflict prevention comprise missions performed to maintain public order or ceasefire agreements abroad without force of arms. 87 Active armed engagements are performed to impose ceasefire or control violence, in case of need however, also by use of force. 88 This interpretation leads however to the question of consent of the single member state, being a prerequisite for such a mission.

II. Separation Within Europe

31

Since the Law of 20 May 1994 and the Royal Decree of 6 July 1994 cannot be interpreted as final, the defined scope seems to be wide enough to allow for interpretation and to cover nearly any kind of military engagement, provided it does not contradict the jus ad bellum and the abovementioned restrictions.89 Core missions of the Belgian armed forces are however the defence of the national territory as well as that of NATO allies within the scope of the particular obligations, participation in general crisis-related operations outside the scope of “Article V missions”, defence diplomacy and the evacuation of national citizens abroad. bbb)

Police Forces

Prior to 2001, Belgium held three principal police forces. Among said forces were the municipal police force, the state police (Gendarmerie) and the judicial police force as assigned to the offices of the public prosecutors. The Belgian police authorities were subjected to in-depth structural reforms, resulting in the establishment of one integrated police service, subdivided to a federal and a local level.90 Adduced as immediate cause were the case of Dutroux and the underlying shortcomings in coordination and cooperation of the various police forces. Established on January 1st 2001, the Federal Police Service worked in close cooperation with local police services to maintain public security and guarantee democratic principles. Though no concrete definition of the tasks is incorporated in the constitution, principal responsibility of the Federal Police Service is the execution of administrative and judicial police tasks overlapping single localities. The service is headed by a General Commissioner and is composed of 12,200 personnel. Subordinate to the General Commissioner are several departments responsible for the cooperation with the local services, international cooperation, integrated police operations and the cooperation of external communication.91 The general directorate for administrative police is responsible for those missions associated to administrative police. In detail, these missions comprise the maintenance of general traffic circulation like the traffic police, the maritime police, the railway police and the aeronautical police. In addition, the directorate is tasked with the overall task of immigration and border control in Belgium and the provision of special staff and equipment to fulfil CRC tasks. However, some officers are assigned special protection tasks such as the protection of the Royal Palaces, or the escorting of cash transports. Another important mission of the general directorate is the cooperation of international humanitarian operations. The general directorate of the Judicial Police coordinates police responses to specific criminal activities such all crimes against persons including human 89

Pierre d’Argent, “Military Law in Belgium”, in European Military Law Systems, ed. by G. Nolte, p. 189 et seq. 90 Speech of Denis Bergmans, “Police and Gendarmerie Reform in Belgium: from Force to Service”, held at the International Conference on Democratic Horizons in Security Sector: Turkey and the European Security Sector Governance Experience, Istanbul, February 3rd 2005. 91 See http://www.police.ac.be/menu_58.htm, visited May 27th 2010.

32

A Comparative Law

trafficking and drug abuse, crimes against property, organised crime as well as economic and financial crimes such as corruption and money laundry. This directorate also executes special support measures such as telephone surveillance or forensic investigation. The general directorate for operational support maintains a SWAT team, a Police Dog Team, Air Support Division and other administrative services. Additional support is provided by both the general directorate of logistics and the general directorate of human resources. The local police forces are composed of 196 public areas and a total of 28,600 police officers patrolling 584 communities. As a distinguishing feature, the police forces of both the federal and local level are assigned the same status, including identical ranks, legal protection, training, or disciplinary provisions. However, local forces and the federal police became linked by a functional liaison, not by a hierarchical system. Local police forces are responsible for basic police care on the principles of community policing and for the maintenance of public order and for the judicial police. The decision to change the type of policing into a system of community policing served as a role model for other police forces facing commensurable difficulties such as South Africa. Though the shortcomings of paramilitary forces in community policing is well-known to other countries, they adhere to their existence. They do however accept the incompetence by holding municipal police forces to maintain community-policing capabilities. It remains a debateable but somewhat idle point whether Belgium would take the same decision after the worldwide change in security policy after 9/11. At the bottom-line, Belgium is a rare example that proves the feasibility of integrating a paramilitary authority like a Gendarmerie into one integrated police service. The experience of the coming years will show the practical effect and whether it will be deemed as a persuasive precedent. ccc)

Cooperation

Generally speaking, there seems to be no legal obstacle in the cooperation between the armed forces and civilian aid organisations in cases of humanitarian aid at home, natural disasters or humanitarian catastrophes at home since these categories of operations may be defined as “missions of assistance to a civil population”. Apart from that, any operation of the armed forces within the national territory is exceptional. As a matter of course, this does not include measures of self-defence. A call for the armed forces will only occur in cases where civil measures are not sufficient, i.e. where the Federal Police is unable to maintain public peace by its own means. Classic examples of such scenarios are riots and other forms of civil strife. At that point, the bourgmestres may require the deployment of armed forces to ensure a quick and sustainable intervention, using the specific human and technical resources. Like in Germany, the deployment of armed forces within the national territory is always a matter of last resort. Worth remarking is the fact, that in such a case, the armed forces act under the authority of the requesting party and that their measures are limited by the competence of the requesting party. Exemplary operations of the armed forces are natural disasters but also cases of

II. Separation Within Europe

33

terrorist-related anxiety due to which paratroops were ordered to guard official buildings. Another operation by which money transporters should be guarded at the occasion of the introduction of the Euro currency was widely discussed but never actually realised. Relevant operational modality of the troops employed during such operations is the active duty position.

cc)

Bulgaria

As one of the youngest members of the European Union, Bulgaria came a long way from a rather totalitarian system to a democratic state. aaa)

Armed Forces

After years of transition, the country successfully established democratic principles by implementing judicial regulations governing civil-military relations.92 Today, the Bulgarian Armed Forces are under large political and public control.93 According to the Military Doctrine of the Republic of Bulgaria, the armed forces are a basis of the country’s defence and deemed to ensure its sovereignty, security and independence as well as protecting its territorial integrity.94 Among its basic tasks are the deterrence of hostile attacks and defence, the execution of peacekeeping and humanitarian missions as well as SAR operations. The Bulgarian National Assembly resolves on the declaration of war and conclusion of peace according to Art. 84 Nr. 10 of the Bulgarian Constitution. In addition, the National Assembly approves any deployment and use of Bulgarian armed forces outside the country’s borders, and the deployment of foreign troops on the territory of the country or their crossing of that territory.95 bbb)

Gendarmerie

Bulgaria holds a Gendarmerie forces, referred to as the “MBP” as part of the Ministry of Internal Affairs.96 This paramilitary service consists of five branches and fulfils internal related duties such as counter intelligence, maintenance of public order and protection of national borders. Additional tasks such as the

92

Plamen Pantev and Colonel Valeri Ratchev, “Civil-Military Relations in Bulgaria: Aspects, Factors, Problems”, Civil-Military Relations in South-East Europe, p. 31 ff. 93 Parliamentary control is mainly exercised by the National Assembly defining a National Security Concept, a Military Doctrine, the Defence and Armed Forces Act (DAFA) and other basic laws. 94 See No. 44 of the Military Doctrine of the Republic of Bulgaria, approved by the XXXVIII National Assembly of the Republic of Bulgaria on April 8th 1999. 95 Art. 84 Nr. 11 of the Bulgarian Constitution. 96 Abbrevation of MиHиcтepcтвo Ha вътpeшHитe paбoти.

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A Comparative Law

guarding of important facilities and buildings derive from the Gendarmeries intermediate position between the police and the military.97

ccc)

Police Forces

Tasks of the police forces of Bulgaria are defined in the Article 51 ff. of the Ministry of Interior Act.98 Among those tasks are the protection of public peace, the prevention and detection of crimes, the defence of rights and freedoms of citizens as well as the protection of property of citizens, the state, municipalities and the organisation of guarding institutions and sites.99 According to Art. 84 Nr. 12, the National Assembly introduces martial law or a state of emergency on all or part of the country’s territory on a motion from the President or the Council of Ministers.

dd)

Cyprus

The security forces of Cyprus are composed of the military as well as of gendarmerie and police forces. Corresponding regulations are laid down in the Articles 129–132 of the Constitution.100

aaa)

Armed Forces

The military of Cyprus consists of the Cypriot National Guard as a combined arms force with land, naval and air elements. The army of the Cypriot Republic shall be composed of 2,000 men.101

bbb)

Gendarmerie

According to the Constitution, the remaining security forces shall consist of the police and gendarmerie with a contingent of 2,000 men.102

97

See http://www.mvr.bg/en/AboutUs/StructuralUnits/National+MoI+Services/Gendarmery/ default.htm, visited May 27th 2010. 98 Chapter seven, part two, section I of the Ministry of the Interior Act of May 1st 2006, amend. Official Gazette, No. 30 of April 11th 2006. 99 See } 4 (1) of the Provisional and Final Provisions of the Ministry of Interior Act as amended by Official Gazette, No. 30 of April 11th 2006. 100 See http://www.kypros.org/Constitution/English/index.htm, visited May 27th 2010. 101 E.g. Article 129 (1), Appendix D, Part VIII of the Cypriot Constitution. 102 Article 130 (1), Appendix D, Part VIII of the Cypriot Constitution.

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ccc)

35

Police Forces

The police forces of Cyprus are responsible for aspects of securing the inviolability of the sovereignty of the Cyprus Republic, checking of passengers entering and exiting the country, control of the legitimacy of stay of foreigners within Cyprus, preventing illegal immigration, smuggling of goods, drugs, arms and human trafficking, gathering of information to prevent illegal activities, cooperation with other authorities involved in border management such as the Gendarmerie, cooperation with law enforcement agencies of other European countries, conducting SAR operations as well as assisting other police authorities in the maintenance of law and order throughout the country. Cyprus holds various specialised police forces, which are generally separated into several departments such as the Financial Crime Police Department, the Cyber Crime Police Department, the Crime Investigation Department or the Analyse Crime Department. Police forces of Cyprus specialised in border control and blue border surveillance comprise units of Port and Marine Police, tasked with the operation of patrols and surveillances of the territorial waters and coastlines. Additional police authorities fulfilling tasks of border control are the Police Air Wing and the Police Radar Branch. The missions of the police departments are legally distinguished by the Police Law and specifically by the Police Regulations.103 The police forces of Cyprus come under the authority of the Ministry of Justice.

ee)

Czech Republic

The Czech Constitution does not contain any paragraphs concerning the mission of the armed forces or the police.

aaa)

Armed Forces

Legal basis for a deployment of armed forces is Article 43 of the Constitution. The Czech Armed Forces (ACR) are assigned to tasks as summarised in the Czech Security Strategy. According to this Security Strategy, the Forces are to defend the “vital interests” of the state, including the defence of the existence of the Czech Republic, its sovereignty and territorial integrity, political independence as well as democracy, legislative state, protection of human rights and liberty of inhabitants.104 Summarised under “other important interests” are mentioned the prevention and readiness in unpredictable natural, ecological and industrial disasters,

103

See the Police Law No. 73 (I) / 2004. See the Czech Republic Security Strategy 2004, approved on June 9th 2004, Governmental Resolution No. 578, p.3. 104

36

A Comparative Law

environmental protection, possible relations with global climatic changes, food and water shortage, industrial potential and energy shortage, etc.105 While the primary mission is thus the defence and protection of the nation against external attacks, humanitarian and rescue operations outside the Czech territory are all the same permissible. Furthermore, the ACR are called to assist in engaging potential threats arising of terrorist attacks, natural, ecological, industrial and other disasters, dangerous infectious disease, danger to the health or property of the Czech Republic inhabitants and other violation of internal order and security. Political-military ambition of the ACR to this account is to develop a capability for a deployment of 1,000 soldiers for 3 months in favour of the Police Forces of the Czech Republic (PCR), depending on parallel-performed tasks of joint defence or peacekeeping operations abroad. Additional ambition is the capability to hold ready 1,200 soldiers for 1 month to the integrated rescue system.106 Among the main types of military operations of the Czech Armed Forces are “combat operations”, “non-combat operations” as well as a third type, designated “special, information and psychological operations”.107

1)

Combat Operations

According to the Doctrine of the Armed Forces of the Czech Republic, combat operations are to be understood as operations in which the counterparts try to achieve their objective by combat, including military operations to beat back armed attacks aiming at a disruption of the territorial integrity, political independence or state security as well as the fulfilment of allied commitments to common area defence. In spite of their nature, combat operations can be divided into offensive and defensive operations.108

2)

Non-combat Operations

Corresponding to the definition of the Doctrine of the Armed Forces of the Czech Republic, non-combat operations are those operations, in which manpower and resources of armed forces are applied without the calculated use of force. Though weapons can be used even in the course of a non-combat operation of an emergency situation, these situations can in general be attributed to self-defence while performing non-combat tasks or to protect civilian population.

105

See the Czech Republic Security Strategy 2004, p. 4, supra. See Czech Republic Military Strategy 2004, p. 5. 107 According to the Doctrine of the Armed Forces of the Czech Republic, approved on December 15th 2004 by the Chief of General Staff, Lieutenant General Pavel Stefka. 108 Doctrine of the Armed Forces of the Czech Republic, p. 21, supra. 106

II. Separation Within Europe

A)

37

Non-combat Operations of the ACR Within the National Territory

Non-combat operations are further differentiated whether being carried out inside or outside the Czech Republic. Among such operations taking place within the national territory are tasks like air space defence, particularly within NATINEADS,109 guarding of facilities vital for state defence, assistance operations to support the police and operations within an integrated rescue system. Being the most important task of the Czech Air Force, air space defence has an exclusively defensive character and aims at safeguarding the national territory against military and non-military air threats. During peacetime, the air force carries out general air policing missions as well as navigational assistance in emergency landing situations. Objects and facilities to be guarded by the ACR due to their importance for state defence are those objects, which – by destruction or damage, endangering of workers, stealing, breaking or damaging the property which is temporarily or permanently stored there – considerably endanger the Czech Republic’s security or ability to act. Following the specifications of the Doctrine of the Armed Forces of the Czech Republic, these eligible objects are divided into two basic groups, depending on the guard support required from the ACR elements.110 Guarding will increase in intensity as well as in number of guarded objects according to the present crisis situation. Objects classified into the first group include land estates and other facilities of great significance to ensure the state defence in political, military and economic terms located within military domains and their fixtures. In addition, buildings and land estates where the property rights or other rights are executed by the MoD or by a legal entity established or founded by the MoD are classed into this group. The actual guarding of military objects coming under this group is conducted by members of the ACR as a measure of standard activity of the military formations. Objects of high relevance are thus storage facilities for weapons, ammunition, other weapons components and restricted items. Objects of the second group include government designated landed estates, buildings, and other objects which might have strategic importance to the country during a state of peril or a state of war, including specified segments of state boundaries, buildings, and land estates designated for population protection. The guarding of these objects is subjected to a decision of government and is likewise associated with the present situation. Attention is directed to the guarding of objects of high importance as well as of high risk to the population, e.g. nuclear power plants, chemical plants etc. Respective guarding is carried out by purpose-built formations of the ACR. In the event of a declaration of a state of emergency, the government will fall back to the ACR’s active reserves.

109

Air space defence of the Czech Republic is carried out within the NATO Integrated Extended Air Defence System since 1999. 110 Doctrine of the Armed Forces of the Czech Republic, p. 103, supra.

38

A Comparative Law

Other important aspects of non-combat operations of the ACR are assistance operations in order to support the Police Forces of the Czech Republic (PCR). Such assistance is permissible during operations of state boundary protection or when executing tasks of public order or protective service when PCR lacks own forces and means. The responsible central and regional crisis management authorities demand for any use of the ACR during such an assistance operation. To meet these demands, the ACR create purpose-built task forces. Their composition, size, and equipment always need an adjustment to the character, extent, and time of the task. Complying with the principles of operational control (OPCON), the task force is assigned to carry out their mission in particular regions by the ACR’s operational commander, based on a request of the Home Office. As for the duration of the operation, the task force is subordinated to the task force commander or the commander of detached forces and means. The task force’s deployment is executed on demand of the PCR regional commander. The forces and means of other components of the Czech Republic’s Armed Forces on the national territory can be employed for PCR tasks on short notice, provided they are not involved in preparing for or executing its primary tasks.111 Operations within an Integrated Rescue System of the Czech Republic (IRS) are another possibility to deploy armed forces within the national territory in noncombat operations. The basic components of the IRS consist of fire rescue corps, fire service units, medical rescue services and police forces. In addition to these, some detached forces and means of the armed forces are also IRS components, in particular forces and means of military rescue units. Suchlike assistance operations are executed by the armed forces in a number of cases. Among these cases are rescue operations at the event of disasters or other situations endangering life, health, considerable property values, and the environment assumed that the territory autonomy authorities and the basic IRS components are unable to handle the situation under their own steam. Other cases in which the armed forces provide assistance to the IRS components may arise when the removing of impending threats requires military equipment not possessed by the basic IRS components. Air monitoring in the event of a disaster or air medical evacuation when the air rescue service is not sufficient as well as to hold ready forces to provide transportation of humanitarian and medical help or general air search and rescue services are also tasks to be carried out by the armed forces.112 The decision to assign armed forces to these kinds of assistance operations is taken by the responsible central and regional crisis management authorities.

B)

Non-combat Operations of ACR Outside the National Territory

Operations being accomplished outside the national territory are either “support” missions including SAR operations, non-combatant evacuation and military 111

Doctrine of the Armed Forces of the Czech Republic, p. 105, supra. Doctrine of the Armed Forces of the Czech Republic, p. 106 supra.

112

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assistance to civil authorities or “peace” missions including conflict prevention, peace making, peace-keeping, peace-enforcement, peace building and humanitarian operations.113 In this context, conflict prevention operations are peace-support operations using mutually complementing diplomatic, civilian, and military means for monitoring and detecting conflict reasons and for taking timely measures to prevent an outbreak or escalation of an armed conflict. Peace making operations however are carried out after the outbreak of an armed conflict, aiming at an armistice or peace settlement. Military means may include reconciliation interposition, isolation, embargo and other activities approved by leading international political organisations. Peacekeeping operations follow an agreement conclusion or cease-fire, thus limiting the use of force to mere self-defence. Peace-enforcement operations are usually conducted in accordance with chapter VII of the UN Charta to achieve a cease-fire or peace agreement. They have an inherent coercive character to urge impartially at agreeing to a cease-fire or peace agreement or to enforce conditions laid down in the mandate. Post conflict peace building operations usually follow conflict resolution, aiming at a long-term support for the population by creating a peaceful environment in the society. Humanitarian operations are also defined as peace-support operations, focused on relieving and easing human suffering in regions, where local authorities are unable to grant corresponding protection and support.114 Other supporting operations providing humanitarian assistance to a population, civil authority and organisations are organised similarly to humanitarian operations within the UN, NATO or EU crisis management system with the participation of military forces independently or with peace-support operations. Military assistance of the armed forces may also be based on bilateral agreements between the Czech Republic and the requesting state. Categories in which military assistance is usually performed are health protection and life saving of civilian population groups or individuals during natural disasters or other major accidents, protection of the delivery of goods and of relief workers against warring factors or criminal elements, administrative tasks as to coordinate relief operations and distribution of supplies as well as support to civilian humanitarian organisations including transportation, distribution of water and food, medical assistance, engineer support in construction and maintenance of roads, bridges and other infrastructure.115 SAR operations of the ACR within the scope of non-combat operations of the Armed Forces of the Czech Republic are executed by all relevant units, comprising the air force, ground forces, as well as the navy and specialised rescue teams. In order to ensure that the military is applied only to the extend necessary for urgent operations a regulation has been integrated in the doctrine of the ACR, aiming at an employment of the military as short as possible.116

113

Doctrine of the Armed Forces of the Czech Republic, p. 20, 92 et seq., supra. Doctrine of the Armed Forces of the Czech Republic, p. 95, supra. 115 Doctrine of the Armed Forces of the Czech Republic, p. 99, supra. 116 Doctrine of the Armed Forces of the Czech Republic, p. 99, supra. 114

40

bbb)

A Comparative Law

Police Forces

Law enforcement bodies of the Czech Republic consist of police forces, public prosecutors and in specific cases of customs authorities. The Police of the Czech Republic (PCR) is the state police force responsible for public security and investigation of crimes. It consists of a total number of app. 47,000 officers supported by 11,600 civilian staff.117 Beside the PCR, there are no regional or city police forces assigned with similar tasks. However, municipal police wardens are assigned tasks concerning traffic and public order in specific municipalities, though vested with limited rights. The tasks of the police are defined by the law No. 283/1991 Col. on the Police of the Czech Republic in the wording of further regulations.118 According to this Act, “the police shall perform tasks related to internal order and security and other tasks to the extent and in the manner stipulated in legal provisions”.119 The act defines the tasks of the police in a more detailed manner, assigning the protection of the safety of persons and property to the police, just as the participation in securing public order and in case of its breach to take measures for its restoration in case of its breach. Other tasks stipulated by the Police Act are the combat against terrorism, the detection of crimes and establishing of offenders, the conduction of criminal investigation, the protection of state borders, the protection of constitutional agents of the Czech Republic and the safety of protected persons and diplomatic missions and other premises of special importance for internal order and security, supervision of road safety and the control of highway traffic flow, the detection of administrative infractions, the identification and pursuit of wanted persons, the provision of emergency protection of nuclear facilities as well as performing other administrative tasks such as managing local matters of public order assigned by municipal authorities.120 Several additional documents concerning the prevention of crimes have been issued alongside the Police Act, further defining the scope of responsibility of the police.121 The police force of the Czech Republic also participates in various peacekeeping missions. The type of mission is defined by the organiser of the mission, be it UN, EU, etc. Similarly, the police officers of the Czech Republic fulfil the tasks defined by the organiser of the mission.

117

According to official data provided by Interpol, see http://www.interpol.int/Public/Region/ Europe/pjsystems/Czech.asp, visited May 27th 2010. 118 Police Act - Act 283/1991 Coll., amended January 1st 2006, see http://aplikace.mvcr.cz/ archiv2008/dokument/2006/283_1991a.pdf, visited May 27th 2010. 119 See section 1 (2) of the introductory provisions of the Police Act. 120 See title 1 section 2 (1) – (4) of the Police Act. 121 Among others the Crime Prevention Strategy for the Years 2008–2011, see http://www.mvcr. cz/mvcren/file/crime-prevention-strategy-2008–2011-pdf.aspx or the National Action Plan to Combat Terrorism Update for 2007–2009, see http://aplikace.mvcr.cz/archiv2008/dokument/ 2008/nap_2007_en.pdf, visited May 27th 2010.

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Since no clear defined boundary between these two instruments exists, the armed forces are even trained and equipped for crowd and riot control. This training is similar to that of the standard police forces due to the fact that the Czech armed forces reinforce the police patrols on some occasions such as big international events.122 According to a statement of the Czech Government however, no problems due to an overlapping of competences have yet occurred.123

ff) aaa)

Denmark Armed Forces

Within the Danish constitution, only a single provision deals with the existence and the mission of the armed forces, yet no definition of their mission derives from said provision. Though the constitution does not define a mission of the armed forces, it may well be concluded from the wording that the defence of the nation has first priority, limited only by procedural rules. Besides preserving the sovereignty of Denmark, the security of a continuing existence and integrity of the independent nation of the Kingdom and the furthering of a peaceful development in the world with respect to human rights are the primary purposes laid down in the constitution. The primary tasks are the participation within the North Atlantic Treaty Organisation, the detection and repelling of any violation of Danish territory, defence cooperation with non-NATO members, international missions in the area of peacekeeping and conflict prevention. Due to the lack of constitutional determination of the general mission of the armed forces, the Danish parliament passed an Act on the Purpose, Tasks, and Organisation of Defence whose articles 1 and 2 define the purpose of the armed forces (at least) as to defend the sovereignty, integrity and secure existence of Denmark.124 The ultimate decision concerning the mission has to be taken by the government and the parliament. Rules concerning the “Cooperation between the armed forces and Other Governmental Authorities, States of Emergency at Home, and Natural Disasters or Humanitarian Catastrophes at Home” are enclosed in the act. Condition for such a mission is the approval of the minister concerned.125 While Article 6 deals with humanitarian help abroad, Article 7 and potentially Article 4 regulate cases of humanitarian aid at home. Even though no provision explicitly regulates combined operations with civil aid organisations, such an operation could presumably be accomplished under Article 7 of the Defence Act. Cooperation with other governmental organisations is as well permissible under the 122

e.g. Monetary Fund Conference, NATO Summit, etc. Statement of the International Police Co-operation Division, International Relations Department of the Czech Republic to the author. 124 Law no. 122 of February 27th 2001, in force since March 1st 2001. 125 Jorgen Albraek Jensen, “Military Law in Denmark”, in European Military Law Systems, ed. by G. Nolte, p. 239 et seq. 123

42

A Comparative Law

rule of Article 4 and 7 of the Defence Act. Evacuations of state’s nationals are permissible under Articles 6 and 7 of the Defence Act. However, no specific rule is provided for an internal state of emergency. For that reason, the generally recognised and applicable principle of jus necessitatis covers according operations. That means that the armed forces are permitted to carry out police tasks on the mere basis of Article 7 of the Defence Act. In addition, these measures require a consultation of the relevant minister of justice prior to a deployment. By and large, the regulations of the Defence Act are quite broadly phrased and are complemented by an omnibus clause to cover tasks not envisioned by the time of enactment. This omnibus clause is enclosed in Article 7 of the Defence Act, allowing for a more versatile and flexible application of the rules. The general apprehension of the possibilities of military engagement is that the executive has been given the control over the armed forces by the constitution, which in turn might be a reason for not again limiting their use either by the constitution or by statutes. bbb)

Home Guard

In addition to the three traditional branches Army, Navy, and Air Force, the Danish military structure comprises another branch, the Home Guard. This Home Guard does not come under the Defence Command during peacetime, but directly under the Ministry of Defence. Only in times of tension or war, the Defence Command will assume command over the Home Guard. Its exclusive task is the defence of the Danish territory.126 Its overall mission is to reinforce and support the military branches in fulfilling their missions. Thus, cooperation between the armed forces and the Home Guard are basically permissible under Articles 4 and 7 of the Defence Act. Since the constitution does not restrict the employment of armed forces for domestic purposes, various tasks can be carried out accordingly by the military. To prepare both the Home Guard as well as the traditional military structure for future tasks the Danish Defence Agreement 2005–2009 has been developed, broadening the outlook for future transformation of the armed forces.127 ccc)

Police Forces

The Police Forces of Denmark, the Far€ oe Islands and Greenland are composed as one corps, directly subordinate to the portfolio of the Minister of Justice. The Reichspolizei administers funds and personnel, the offices and the maintenance of the buildings. The administration of legal personnel is conducted by the relevant department of the Ministry of Justice. Headed by the Reichspolizeichef, the 126

As of 2005, it consists of some 56,000 volunteers, both men and women, and approx. 800 employees. The Danish Home Guard is subdivided into four branches, the Army-, Aviation-, Naval- and Company Home Guard, see http://www.hjv.dk/Eng, visited May 27th 2010. 127 The Danish Defence Agreement 2005–2009, see http://forsvaret.dk/FKO/eng/Defence+Agreement/, visited May 27th 2010.

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Reichspolizei is subdivided into several major departments, most of which holding operative and supportive functions. Danish Police Forces share their citizenoriented way of policing as a distinguishing feature.128 Denmark is subdivided into 54 police districts, disposing of main police stations and local stations in rural and sparsely populated areas. The mission of the Danish Police Forces is assigned by the Folketing, the Danish Parliament and is laid down in the Administration of Justice Act and in the Act on Police Activities. According to these regulations, the police forces have to advocate protection, security, peace and order in the society by fostering preventive, assisting and prevailing activities. Following this principle, the police forces are assigned the tasks of preventing punishable issues, disturbances of public peace and order as well as the endangerment of individuals and public security; preventing of punishable activities and subsequent investigation and prosecution; rendering assistance to citizens in other forms of distress; executing control and supervision according to relevant laws and the execution of other tasks according to relevant law that are attributable to the police. This catalogue clearly underlines the preventive character of the police forces though other tasks may be assigned to the police. As to that, police officers also take over administrative tasks such as the issuing of passports or firearm certificates. Other tasks are a kind of administrative assistance to other Ministries and authorities concerning alien acts, or legislation of guardianship or marriage. Additional tasks arise from the important role of the police forces in civil defence or the evacuation of parts of the population in times of crises.

gg) aaa)

Estonia Armed Forces

The Constitution of the Republic of Estonia does not provide a definition of the preferential or normal spheres of action assigned to the armed forces.129 However, relevant key tasks of the armed forces are stipulated in the Peace-Time National Defence Act according to which “the goals of national defence are to preserve the independence and sovereignty of the state of Estonia, the inseparable and indivisible integrity of its land, territorial waters and airspace, its constitutional order and the security of its people”.130 In accordance with the Peace-Time Defence Act, the Estonian National Military Strategy defines the main objectives of the Estonian defence system as the preservation of the independence, sovereignty and territorial integrity of the country, its 128

Gert Nielsen “B€urgernahe Polizeiarbeit in D€anemark” Auf dem Weg zu einer europ€ aischen Polizei, Rolf Moire´, Manfred Murck, Rainer Schulte (eds), Stuttgart 1992, pp. 209–213 (210). 129 The Constitution of the Republic of Estonia, see http://www.riigiteataja.ee/ert/act.jsp? id¼633949, visited May 27th 2010. 130 } 1 (1) of the Peace-Time National Defence Act of June 12th 2002, RT I 2002, 57, 354, subsequently amended, see http://www.legaltext.ee/text/en/X90030.htm, visited May 27th 2010.

44

A Comparative Law

constitutional order and security of the nation.131 Military national defence is organised according to the principle of democratic civil control to ensure a proper distribution of responsibilities between the countries’ civil and military defence structures. These tasks are however of an obvious military character. Conclusions of an internal assignment of the Estonian Armed Forces cannot be drawn from the National Military Strategy 2005. According to the Peace-Time National Defence Act, the defence forces consist of the Defence Forces, the National Defence League and the militarily organised units within the area of government of the Ministry of Internal Affairs.132 A more detailed definition of the armed forces and their preferential spheres of action and the essential and permanent objectives to be pursued by the armed forces in the matter of national defence are peremptorily synthesised in following provisions: “The Defence Forces shall protect the state by military means, prepare for the military defence of the state, participate in the performance of the international military obligations of the Estonian State, participate in rescue and emergency work. . .”.133 Additional key national military tasks are defined as to provide collective defence and management of international crises that directly threaten the security of Estonia and/or other NATO member states, to participate in international crisis management and peace operations including the operations of the EU as well as international defence cooperation. In addition, Estonia cooperates with Latvia and Lithuania in BALTBAT (joint infantry battalion) and BALTRON (joint naval squadron), both available for peacekeeping operations. The planning of national defence is based on a tension escalation concept with four levels. During peacetime, regular activities are conducted at a regular pace to ensure readiness and the maintenance of capabilities. During a state of tension, the peacetime activities are intensified while capabilities to gather and analyse information are enhanced. During a crisis, a state of higher readiness is declared while key facilities are provided with additional security measures and the reserve forces are activated partially. During wartime, all national resources are applied. Alongside this escalation, the interagency cooperation is strengthened accordingly.134 Units of the military police company do receive however both training and equipment to handle CRC issues. Relevant training has also been conveyed to members of the defence forces serving on the Kosovo mission.

131

Unofficial translation of the National Military Strategy 2005 of the Republic of Estonia, Annex to the Government of the Republic, Regulation No. 10 of January 18th 2005 on the Implementation of the National Military Strategy, Chapter II, 13, see http://www.mod.gov.ee/static/sisu/files/200509-08_NMS_2005.rtf, visited February 6th 2006 and the National Security Concept of the Republic of Estonia (2004), see http://merln.ndu.edu/whitepapers/Estonia-2004.pdf, visited May 27th 2010. 132 } 11 of the Peace-Time National Defence Act, supra. 133 } 12 (3) of the Peace-Time National Defence Act, supra. 134 See National Military Strategy 2005 of the Republic of Estonia, Chapter III, 17.

II. Separation Within Europe

bbb)

45

Defence League

The Citizens’ Defence Organisation preceded the Defence League, having been the first Estonian armed home defence organisation to maintain public order during the Russian Revolution. After its liquidation in 1940, it was re-founded in 1990 to defend Estonia’s independent statehood. On February 8th 1999 the Estonian Parliament adopted the Defence League Act, defining the position of the Defence League within the society and the armed forces. It also stipulated the legal basis of its activities, its administration and the cooperation with other institutions. According to Estonian law, the Defence League Kaitseliit is a voluntary military national defence organisation and part of the Defence Forces.135 While it engages in military exercises and possesses arms, its mission is to enhance the readiness of the citizens to defend the independence of Estonia and its constitutional order. To be most effective in its cooperation with the police, a framework agreement between the General Staff of the Defence League and the Police Board was concluded on September 23rd 1998. According to this agreement, public order protection units were established composed of members of the Defence League with the status of assistant policemen and police officers. The tasks of the public order protection unit include the protection of the public order as well as the performing of tasks of the military police during a crisis. The close affiliation to the armed forces is also exposed by the numerous possibilities of cooperation with the armed forces of other nations, such as the armed forces and the National Guard units of Latvia, Lithuania, Finland, Sweden, Denmark, Norway and the United States. ccc)

Combined Border Guard and Police Forces

From January 1st 2010 the responsibilities and services of the Citizenship and Migration Board, Border Guard Board and Police Board have been combined and are now being provided by Police- and Border Guard Board.136 Founded in 1918, the Estonian Police ceased to exist in summer of 1940 when Estonia lost its independence to the Soviet Union. It was re-established within the jurisdiction of the Ministry of Internal Affairs in 1991 by the Police Act (1990), almost half a year prior to the reclamation of Estonia’s independence.137 The Security Police Board gained its status of an independent institution in 1993. In virtue of the Security Authorities Act 2001, the Security Police Board turned from a police authority into a security authority. Its main tasks are the collection and processing of information concerning any activities aimed at a violent change of constitutional order and territorial integrity of the nation as well as the prevention of See } 13 of the Peace-Time National Defence Act, supra. For an overview of the various duties, see http://www.politsei.ee/en/organisatsioon/, visited May 27th 2010. 137 The Police Act of September 20th 1990, see http://www.riigiteataja.ee/ert/act.jsp?id?742489, visited August 11th 2006. 135 136

46

A Comparative Law

such activities. Likewise, the prevention and suppression of intelligence activities against the state, the protection of state secrets, the fight against terrorism, the disclosure of possible corruptive acts of higher state officials and pre-trial investigation of crimes and non-judicial proceeding of misdemeanour also belong to the scope of duty of the Security Police Board.138 It is composed of three national units: the Central Criminal Police, the Central Police Enforcement and the Forensic Service Centre.139 The Estonian Police Forces formulated their aims for 2006 as the fight against crime committed by minors and directed to minors, the fight against organised crime associated with narcotic drugs and psychotropic substances, the fight against crimes related to money laundering, trafficking in human beings and the pursuing and seizing of related criminal proceeds, the identification and development of compensation measures for environmental changes arising from joining the Schengen system.140

ddd)

Cooperation

Within the Estonian national territory, defence forces may participate in rescue and emergency operations in collaboration with police forces.141 Additional possibilities for the armed forces to cooperate with civil police forces are crisis management and emergency situations, pursuant to the relevant Emergency Situation Act142 and Emergency Preparedness Act.143 By means of a framework agreement between the General Staff of the Defence League and the Police Board, the setting up of public order protection units was initiated to improve the cooperation with police forces.144 These units are composed of members of the Defence League who are assigned the official status of assistant policemen. However, the Defence League is a voluntary military national defence organisation, which is part of the Defence Forces of Estonia and is subordinate to the Ministry of Defence. Main tasks of the units are to support police officers in the protection of public order and to perform tasks of the military police during crises. The mere existence of such cooperation illustrates the close nexus 138 See the official website of the Estonian Security Police Board http://www.kapo.ee/eng, visited May 22nd 2010. 139 “Estonian Law Enforcement System”, see http://www.pol.ee/?id¼8346, visited May 22nd 2010. 140 “Priorities of the Estonian Police for 2006”, see http://www.pol.ee/?id¼8036, visited August 11th 2006. 141 See } 12 (3) 4) of the Peace-Time National Defence Act, supra, and Regulation no. 245 of September 26th 2003 “Procedure for the Participation of Defence Forces in Rescue Work and Community Placements”. 142 Emergency Situation Act of January 10th 1996, RT I 1996, 8, 164, subsequently amended, see http://www.legaltext.ee/text/en/X2003K2.htm, visited May 22nd 2010. 143 Emergency Preparedness Act of November 22nd 2000, RT I 2000, 95, 613, subsequently amended, see http://www.legaltext.ee/text/en/X40064K1.htm, visited May 22nd 2010. 144 Framework Agreement as of December 23rd 1998.

II. Separation Within Europe

47

between the armed forces and the police forces in Estonia and the subsequent amalgamation of tasks.

hh)

Finland

A few years ago, the Finish population voted the Armed Forces to be the most reliable instrument among other public institutions. The police followed only second in this voting.145 This public standing is accompanied by a characteristically broad interpretation of the spheres of responsibility of the security forces.

aaa)

National Military Defence Forces

In brief, the Defence Forces ensure the independence of Finland and the living conditions of its citizens by preventing military threats aimed at Finland and if necessary by repelling them within the entire territory of the nation.146 Currently, the Finnish Defence Forces (“Puolustusvoimat”) are composed of 16,500 personnel, 8,700 of which are professional soldiers. Military manpower of the single branches is proportioned as 27,300 personnel serving in the army, 3,000 in the navy and 4,400 in the air force. Essential and permanent objectives of the Defence Forces derive from the national defence obligation as stipulated in the Constitution of Finland: “Every Finnish citizen is obligated to participate or assist in national defence, as provided by an Act”.147 Corresponding definitions of the duties of the Defence Forces are contained in the concurrent provision of the Act on the Defence Forces according to which the forces have a duty to undertake surveillance of the nation’s land and sea areas and air space in cooperation with other supervisory authorities, secure the nation’s territorial integrity, using force if necessary, defend the nation and its judicial system and the livelihoods and basic rights of its citizens, maintain and develop the nation’s military defence readiness, provide military training, support voluntary national defence training as provided by decree or by a decision of the Ministry of Defence or, according to circumstances, the Defence Staff, and otherwise to promote the will to defend the nation and activities that improve the physical condition of citizens, to provide executive assistance to uphold public order and security as well as to prevent and interrupt terrorist crimes as separately legislated for, participate in rescue operations by making available equipment, human resources and special expertise required for such operations should this be necessary in view of the extent or special nature of the accident, participate in 145

Mikko Harjulehto, “Finnland: Starker Wehrwille erm€ oglicht effiziente Verteidigungskr€afte”, in Europ€ aische Sicherheit, No. 1, 2006, p. 20. 146 “The Finnish Defence Forces – 85 Years”, http://www.mil.fi/english/pv85_2_ENG.pdf, visited May 22nd 2010. 147 Section 127 of the Finnish Constitution.

48

A Comparative Law

peacekeeping activities as provided in the Act on Peace Support Operations,148 participate in the performance of the defence administration’s international activities and to undertake any other duties prescribed to the Defence Forces by law.149 Thus, National Military Defence is designed to prevent and control military threats affecting Finland, provide executive assistance to control other types of threat and permit Finland’s participation in international military crisis management. The Defence Forces are under the command of the Chief of Defence, who is responsible for the necessary measures and who is in turn directly subordinate to the President.150 Since 1956, Finland has taken part in UN Peacekeeping numerous missions.151 However, the total number of soldiers being constitutionally authorised to participate simultaneously in crisis management operations on short notice is limited to 2,000 soldiers. Though additional tasks relating to crowd and riot control are generally assigned to the Police Forces, military units participating in international crisis management within the auspices of the UN, OSCE, EU and NATO may also receive relevant training.

bbb)

Border Guard

The Border Guard of Finland is basically a paramilitary or gendarmerie like institution, comparable to the Gendarmerie Nationale of France.152 The task to control the borders towards Russia was assigned to the frontier troops under the command of the Ministry of Interior after the Finnish Civil War in 1919. Due to the increasing rampant alcohol smuggling caused by the Finnish abolition, a separate Sea Guard was founded in 1929.153 After the Second World War, the Frontier Guards were placed along all Finnish borders while the Sea Guard became integrated into the Frontier Guard. Its functions and structure has been reorganised during the past few years.154

148

Act on Peace Support Operations, 514/1984. Section 2 of the Act on the Defence Forces, 402/1974. 150 See “Government Resolution On Securing The Functions Vital To Society” of 2003, http:// www.defmin.fi/files/168/2587_2047_Government_Resolution_On_Securing_The_Functions_ Vital_To_Society_1_.pdf, visited May 22nd 2010 as well as “The Strategy for Securing the Functions Vital to Society 2006”, see http://www.defmin.fi/files/858/06_12_12_YETTS__in_english.pdf, visited May 22nd 2010. 151 Among others: EUFOR, KFOR, UNMIK, UNFICYP, UNMIL, UNTSO, UNMEE, ISAF, UNMOGIP. 152 The official translation of the organisations name “Rajavartiolaitos” was changed 2006 to “The Border Guard of Finland”. 153 Jean R. Tartter, Eric Solsten, Sandra W. Meditz (eds) “Finland: A Country Study”, 2nd Edition, Washington: GPO for the Library of Congress, 1990. 154 See http://www.intermin.fi/rvl/home.nsf/pages/index_eng, visited May 22nd 2010. 149

II. Separation Within Europe

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Currently, its manpower is 3,600 personnel, including 500 conscripts not mobilised during peacetime. Upon mobilisation however, the Border Guard becomes either wholly or partly integrated into the Finnish Defence Forces while its manpower will be increased to about 23,000 personnel. As a military authority, it is subordinate to the Ministry of Interior in administrational issues and to the President of the Republic in issues pertaining to his authority as Commander-in-Chief but can be incorporated into the Defence Forces when required by defence readiness. Its main missions are the maintenance of border security in regard to land borders and territorial waters, passport and customs control at border crossing points, investigation of crimes pertaining to border security and rescue operations, especially at sea.155 The Border Guard is not supposed to being used for the maintenance of public order. However, it has quick response units to support the police forces in exceptional situations. During wartime, the Border Guard is assigned the additional mission of conducting longrange patrols and guerrilla tactics behind enemy lines. The Finnish Border Guard has limited police powers to perform its duties. These powers include the right to seize and arrest persons, to search apartments and cars in virtue of the same legislation as the police forces though these powers are somewhat limited. Thus, the power to arrest has been delegated to the commanding officer of a border control detachment as well as to commanders and vicecommanders of larger units.

ccc)

Police

The Constitution of Finland does not contain any provision concerning the police forces. Instead, the Police Act provides several objectives of the police forces: In virtue of the Act, the mission of the police is “to secure judicial and social order, to maintain public order and security, to prevent and investigate crimes and to submit cases to a prosecutor for consideration of charges”.156 The maintenance of public order and security aims to create and maintain a safe and comfortable living and operating environment, to prevent infringements of rights and public disturbances, to eliminate disturbances and to investigate possible infringements of rights. Thus, the maintenance of public order and security is one of the primary duties of the police under section 1 of the Police Act. Maintaining traffic safety is also part of this mission, based on the Government resolution on improving road traffic safety. In addition, the police forces are obliged to closely work together with local communities to guarantee a well-functioning public sector.157 Accessory to the standard police forces, Finland established three specialised national units: the National Bureau of Investigation, the National Traffic Police and 155

See Act on Border Guard, 578/2005. Section 1 of the Police Act, 493/1995. 157 Such as the National Crime Prevention Programme, adopted in 1999 and the Internal Security Programme, adopted in 2004. 156

50

A Comparative Law

the Security Police.158 Main duty of the National Bureau of Investigation is to prevent and investigate international, organised, professional, financial and other forms of serious crime as well as to develop and maintain crime prevention and investigation methods. Mission of the National Traffic Police is to ensure public order and security by performing traffic control and surveillance, developing traffic safety improvements and methods and investigating related issues. In addition, the National Traffic Police acts as a police reserve. The Security Police is responsible for preventing schemes and crimes that may endanger the established governmental and social order or the internal and external security of the state by developing general readiness to prevent such activities. All three units operate directly under the Police Department of the Ministry of the Interior. ddd)

Cooperation

Cooperation of the Defence Forces with other authorities is a statutory mandate, stipulated in various inter-authority collaboration agreements and other practical cooperation agreements. Conditions for the cooperation of the security forces are laid down in the Act on Executive Assistance by the Defence Forces to the Police.159 According to Section 1 of the prementioned act, the Defence Forces are obligated to render assistance to the police in order to search for and apprehend a person, to cordon off and examine a place or area, to direct traffic, to temporarily protect persons and property as well as to clear explosives. However, executive assistance is only made available in cases provided that standard “police resources are inadequate for the performance of a task or when the police lack the requisite special personnel or equipment”.160 Additional assistance may derive from a specific need of the police forces to prevent terrorist crimes specified in the Code of Criminal Procedure if their own ways and means do not suffice. Remarkably, the Defence Forces employed under the direction of the police have the right to use military force when assisting the police forces in preventing and impeding terrorist activities.161 Underlying this broad conception of assistance is the generally vaguely and indecisive comprehension of separating the missions and tasks of the armed forces and the police forces.

ii)

France

The historical reasons demanding armed forces in France can be found in the Preamble of the French Constitution and the Bill of Human and Citizens Rights 158

Areas of responsibility of these units are enacted in the Act in Police Administration, 110/1992. Act on Executive Assistance by the Defence Forces to the Police, 781/1980. 160 Section 2 of the Act on Executive Assistance by the Defence Forces to the Police, supra. 161 Act on Executive Assistance by the Defence Forces to the Police, supra. 159

II. Separation Within Europe

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from 1789 in which a “public force” should avouch for a protection of individual positions. There are a few uniformed and civilian security forces reporting to other ministerial departments, such as the customs officers, but very few in number and very specialised.

aaa)

Armed Forces

References of the present Constitution to the armed forces are laid down in Article 15 defining the President as titular head and Commander-in-Chief or Chef des Arme´es. Further references are stipulated in Article 20 according to which the Government holds the Armed Forces at its disposal. Total number of military personnel today is approximately 356,000, 99,000 of which are serving in the Gendarmerie charged with national law enforcement tasks and therefore not designed for external operations. Currently about 36,000 French troops are deployed overseas, including 9,000 participating in peacekeeping operations.162 According to the White Paper of 1994, the mission of the armed forces covers the protection of all vital interests against any form of aggression, the freedom of the citizens, the sovereignty of the nation, and “To carry out public service tasks, particularly by strengthening means and organisations normally responsible for the civil defence of our country”. Within the French constitution, virtually no restriction exists to limit the scope of duty of the armed forces. Concerning the police forces, orientation laws for the National Police and a National Gendarmerie Statutory Order from the year 1905 for the gendarmerie exist. The basic mission of the French Armed Forces is quite generally laid down in an ordinance: “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”.163 The French armed forces are assigned the missions to protect the vital interests of France against all forms of aggression, to contribute to the security and defence of Europe and the Mediterranean, with the prospect of the common European Defence Policy ultimately implemented, to contribute to actions conducive to peace and the respect to international law, to carry out public service tasks, particularly by strengthening means and organisations normally responsible for the civil defence of the state. Above stated missions are formulated in the White Book as from March 1994, published by the French Minister of Defence. The general perception of the mission of the armed forces is to refrain from internal security missions, but rather in armed defence mission on national territory or abroad, as needed and deemed necessary by the government. Though an involvement in security and police operations is possible, the armed forces have to be 162

See http://www.defense.gouv.fr/ema/operations_exterieures, visited May 22nd 2010. Four principles forming the basis of the definition of defence in France as stated in Article 1 of the Order of January 7th 1959 relating to the general organisation of Defence in France. 163

52

A Comparative Law

called in and commandeered by the civil authority to which they are immediately and permanently subordinated at a national or regional level. Their primary characteristics originate from their main mission as perceived by the public: the number of members, the elements it consists of, and its organisation. Functionally, the French armed forces are organised in operational forces deployed in peacetime in five defence regions, and in 22 economic regions, quartered in many different zones and areas in continental France as well as overseas. In every de´partement, a military representative stands close to the prefect, who in turn responds to the Home Secretary, being the highest civil authority. Such an organisation accounts for a quick response in times of emergency. Though the upkeep of law and order is neither key concern nor first skill of the French forces, their soldiers are well trained in these domains, mostly due to their experience and commitment in peacekeeping operations in Bosnia, Kosovo and Africa. When it comes to security operations, the Defence Code governs this participation by setting and detailing the modalities of their involvement and cooperation with other ministerial departments involved. On the field of homeland security and the fight against terrorism, the armed forces participate in the governmental plan “Vigipirate”, aiming at improved and reinforced vigilance and protection measures against terrorist and criminal threats of all kind.164

bbb)

Gendarmerie Nationale

The general term Gendarmerie derives from the French expression gens d´armes, literally meaning “armed men”. While the French armed forces consist of three traditional components, the army, the navy and the air force, the national Gendarmerie represents a permanent part of the armed forces.165 The gendarmerie fulfils its preventive tasks in rural areas and in military installations and secures public order, safety, tranquillity and health during peacetime. Though these tasks are by their nature clearly of police character, the gendarmerie is also able to participate in armed conflicts in order to defend the country, changing the nature of their tasks into a military one. In addition to its peacetime responsibilities, the Gendarmerie is in charge of inland security and adapts to every mission in the peace-crisis-war spectrum. As core element of the operational defence of the territory it may be strengthened by 40,000 reservists to play its key part in all four major defence functions: deterrence, prevention, protection and projection. According to this military nature, the Gendarmerie is distinctly structured along military lines and equipped with a military-style weapons arsenal. Contributing to its military character, the Gendarmerie would act as a military 164 Faupin, Alain, “Providing Security, the Division of Labour, Armed Forces, Gendarmerie, Police” DCAF Working Paper No. 156, p. 4. 165 See http://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle¼LEGIARTI000006540193 &cidTexte¼LEGITEXT000006071307, visited May 22nd 2010.

II. Separation Within Europe

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police and is to perform other directly combat-related tasks like defence intelligence and forces safety, defence and safety of civilian targets and indispensable common services. By virtue of the decree passed on May 20th 1903, the Gendarmerie Nationale was assigned the tasks of guaranteeing administrative, juridical and military policing as well as the provision of coordination between a broad range of Ministries while a third task obliged the Gendarmerie to participate in national defence as a constituent military force beside the traditional branches. The French Gendarmerie always had a dual dependency on the Ministry of Defence and the Ministry of Interior: Though it’s a part of the defence department and its officers have the official status of soldiers, the French National Gendarmerie is under the control of the Home Secretary. The Ministry of Defence is however merely in charge of recruitment, education, training, equipment, administration, and logistics. Since January 1st 2009, the budget of the Gendarmerie became integrated into the Ministry of Interior.166 The Gendarmerie Nationale consists of two distinct parts, the Gendarmerie De´partementale and the Gendarmerie Mobile. They are supported by a number of specialised units, such as the Gendarmerie Maritime, Gendarmerie de l´Air, Gendarmerie de l´Armement as well as various technical and antiterrorist intervention units.167 Another well-known branch of the Gendarmerie is the French Republican Guard, the Garde Re´publicaine. It is the ceremonial military unit of France and consists of infantry, horse mounted, and motorcycle components.168 Basically, the distinction between the Gendarmerie De´partementale and the Gendarmerie Mobile lies in their different responsibilities. Whereas the Gendarmerie De´partementale is mainly concerned with administrative, judicial and military duties, the Gendarmerie Mobile is deployed for the maintenance of law and order as well as rapid reinforcement of Gendarmerie De´partementale units in case of emergency. The Gendarmerie Mobile was not constituted until the Loi Organique of July 22nd 1921 defining it as a permanent military force, specialised in the maintenance or re-establishment of order.169 Despite its military character, the decision whether to deploy the Gendarmerie Mobile on the interior is taken by civil authorities, normally a Pre´fet or Sous-Pre´fet. This comprises any action beyond training and routine patrols. At all times however, the Gendarmerie Mobile is subjected to military law and discipline just as the choice of tactics and equipment is theirs in any operation. In case the role to be performed does not expressly fall within the normal sphere of competence of the Gendarmerie Nationale, a mobilisation can be achieved by a requisition order or a formal request for 166 See http://www.gouvernement.fr/gouvernement/dispositions-relatives-a-la-gendarmerie-nationale, visited May 22nd 2010. 167 A very detailed description of the French Gendarmerie Nationale is given by Drusilla Wiffen and Martin Edmonds “La Gendarmerie Nationale. A Blueprint for the Future of Internal Security Provision in the West?”, Defense Analysis Vol. 5, No. 2, pp. 139–151 (141). 168 http://www.garderepublicaine.com/, visited May 22nd 2010. 169 Hubert Haenel, Rene´ Pichon “Que sais-je? La Gendarmerie”, Presses Universitaires de France, Paris 1983, p. 29.

54

A Comparative Law

assistance if the normal duties comprise such mobilisation.170 Noteworthy is the fact, that administrative and judicial authorities or a local representative of the ministerial department need to despatch requests for assistance. This connotes on the one hand, that a legal basis for authorisation has first to be issued if the request falls outside its legal competence. On the other hand, it connotes that any request issued during peacetime to meet a threat to public order or to contain a disturbance or riot is a decision of civil authorities, notwithstanding the principal military character of the Gendarmerie Nationale. As a result, any actions beyond the scope of training and routine patrolling can only be performed with the authorisation of a relevant civilian authority. Rescue operations are not subjected to these regulations and can thus be carried out under military command. Basic principles are laid down in a Law on the Organisation of the Gendarmerie Nationale (1798), often regarded as its charter since it constituted the principal philosophy and duties of the institution. Its Article 1 assigns the missions to maintain order and to enforce the law within the republic. Supplemented by a decree of 1903 that added to a more detailed assignment of tasks, these two documents determined the three primary functions of the Gendarmerie Nationale: civil policing, internal security and defence, and public assistance.171 Civil policing implies the maintenance of public order, domestic peace and public obedience to the law. These competences connote the two distinct responsibilities of crime prevention and investigation. While crime prevention refers to administrative policing, investigation refers to judicial policing. Administrative policing includes traffic policing, educative and preventive action, aid to travellers, intervention in accidents and the general supervision of the road network. Besides these responsibilities, other duties include rural and municipal policing, protection of the environment, public security, antiterrorist surveillance measures172 and the provision of civil authorities with intelligence of a non-political nature.173 Administrative policing also comprises intelligence gathering as an important component, carried out by the general Gendarmerie De´partementale brigade system and the specialised Pelotons de Surveillance et d´Intervention de la Gendarmerie. This constant surveillance conduces to pre-estimate potential unrest. In view of a division of labour the Gendarmerie De´partementale generally responds to more common public disorders whereas the Garde Re´publicaine performs this task in Paris. In contrast, the Gendarmerie Mobile as well as the Compagnie

170 Most frequent requests are for the maintenance or restoration of order, according to Drusilla Wiffen and Martin Edmonds “La Gendarmerie Nationale. A Blueprint for the Future of Internal Security Provision in the West?”, Defense Analysis Vol. 5, No. 2, pp. 139–151 (143). 171 Drusilla Wiffen and Martin Edmonds “La Gendarmerie Nationale. A Blueprint for the Future of Internal Security Provision in the West?”, Defense Analysis Vol. 5, No. 2, pp. 139–151 (143). 172 Groupe d´Intervention de la Gendarmerie Nationale (GIGN) working closely together with the Groupe de Securite´ de la Pre´sidence de la Re´publique (GSPR) and the Groupement de Securite´ et d´Intervention de la Gendarmerie Nationale (GSIGN) or the Escadron Parachutiste d´Intervention de la Gendarmerie Nationale (EPIGN). 173 Pelotons de Surveillance et d´Intervention de la Gendarmerie (PSIG).

II. Separation Within Europe

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Re´publicaine de Securite´ are designed to respond to more serious disorders, forming a permanent reserve force instantly available to enforce public order. However, the task of administrative policing comprises also the implementation of regulations concerning hunting, fishing or alcohol retailing. Besides, the Gendarmerie De´partementale also holds a judicial role involving essential investigations covering infringements of the law, the subsequent hunt for criminals but also the providing evidence, by and large accounting for about a third of the working time of the Gendarmerie De´partementale. Except for the Gendarmerie Auxiliare, all members of the Gendarmerie De´partementale are given judicial police powers. Those who are appointed Officier de Police Judicaire jointly by the Minister of Justice and Minister of Defence are assigned extensive powers. These powers cover duties from receiving complaints to the investigation of infringements of the law or from illegal possession of firearms to fraud whereas special research units handle more serious crimes such as drug abuse or company fraud.174 From a European perspective, these judicial policing roles are exemplary for the interministerial position of the Gendarmerie. Besides civil and administrative policing, military policing is also a key task of the Gendarmerie Nationale. Just as civil policing, military policing combines certain preventative and investigatory functions. Other duties are the monitoring of military traffic, surveillance of individual military personnel or intelligence gathering of matters of concern to the Armed Forces or the Central Defence Staff. Whereas the former supports military authorities by maintaining military discipline, the military investigatory branch engages in contraventions of Armed Forces’ regulations such as absence without leave. To this effect, all gendarmes hold the rank of judicial police officers but of the Armed Forces.175 Additional tasks arise from the Gendarmerie´s responsibility to guard key strategic installations. Such key strategic installations are for instance national nuclear power plant installations. Given the rather specialised protectional needs of such installations, further specialised branches evolved in this sector, e.g. the French force de frappe.176 Since the existence of two national police forces with to some extend similar goals and attributions created a competition of some degree, a redistribution of competency was decided and implemented in the years 2003–2005. Larger conurbations are to be handled by the Police entirely, while rural areas and smaller cities with populations fewer than 16,000 inhabitants fall into the competency of the

174

Drusilla Wiffen and Martin Edmonds “La Gendarmerie Nationale. A Blueprint for the Future of Internal Security Provision in the West?”, Defense Analysis Vol. 5, No. 2, pp. 139–151 (145). 175 Drusilla Wiffen and Martin Edmonds “La Gendarmerie Nationale. A Blueprint for the Future of Internal Security Provision in the West?”, Defense Analysis Vol. 5, No. 2, pp. 139–151 (145). 176 Including the Gendarmerie Maritime, Gendarmerie de l´Air and Gendarmerie de l´Armament. Latter was constituted most recently and is charged with the safeguarding of weapons, ammunition, and explosives during manufacturing, transit and storage, see Drusilla Wiffen and Martin Edmonds “La Gendarmerie Nationale. A Blueprint for the Future of Internal Security Provision in the West?”, Defense Analysis Vol. 5, No. 2, pp. 139–151 (145).

56

A Comparative Law

Gendarmerie. The Gendarmerie handles all matters relating to the military as well as the police at sea, security of airports and the security of certain public buildings, but also tasks of road traffic police and judicial activities. While its operational assets allow for the restoration of law and order and the participation in antiterrorist activities or the protection of French embassies, it also comprises peacekeeping operations and intelligence gathering. During peacetime, the Gendarmerie contributes to defence issues by preparing for a possible mobilisation of troops by administrating the Armed Forces’ reserves. The Gendarmerie spends roughly 60% of its time, resources and strength in the field of civil defence and homeland security mission and the remaining 40% on judicial tasks.177 The numbers of armed forces within the Gendarmerie reached the total of 96,000 in the year 2001 and 99,000 in 2006, all professional, with the exception of a few conscripts, and are distributed over seven regions in France. Commander of the Gendarmerie is a civil servant under the control of the Minister of Defence. During non-military operations, the Gendarmerie is under the control of the local prefect, however following orders of the prosecutor or the examining magistrate during operations in the field of justice. The numbers of Gendarmerie brigades in France are around 3,600 at present. Apart from that, personnel of the mobile Gendarmerie counts 17,000 and is spread over 129 squadrons, seven troops and a security and intervention unit, which consists of the quick response unit GIGN, the paratroops and the guard of the President. During a crisis, judicial powers of the Gendarmerie Nationale would be increased while operations would aim at ensuring continuity and ability of the government to resume their work without being overly obstructed by concerns for the observance of law and the maintenance of public order. Beside the protection of key installations as well as buildings and equipment, the defence of lines of communications and the safeguarding of the French nuclear deterrent force against saboteurs are the primary responsibilities of the Gendarmerie Nationale. In addition, units would be deployed to observe possible penetration by enemy forces or even to neutralise enemy incursion with light, airborne or special task troops. A unit of the Gendarmerie Mobile engaged in military operations comes under the command of a commandant de le´gion besides being classed as third category force complementing the Army, Navy and Air Force. And even though the total portion of man-hours worked by the Gendarmerie Nationale accountable to purely military missions is fewer than 10%, the existence of the Gendarmerie to France’s security is vital. A very traditional role of the Gendarmerie Nationale is the participation in rescue operations. Not merely a legacy, it is a permanent legal obligation, rating failure to render assistance a breach of duty.178 Though rescue operations cannot be regarded as a major component of the total range of activities, it adds to the high

177 Alain Faupin, “Providing Security, the Division of Labour, Armed Forces, Gendarmerie, Police” DCAF Working Paper No. 156, p. 5. 178 See Articles 302 and 156 of the decree of May 20th 1903, completing Article 63 of the French Code of Criminal Procedure.

II. Separation Within Europe

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profile of the Gendarmerie Nationale that has in general a remarkable good standing in the public. This derives not only from its long history but also from its distinct close relationship with the population. In contrast to standard military units, members of the Gendarmerie do not live isolated in barracks but are constantly on duty and always visible, adopting a distinct feature of community policing. The public service tasks of patrolling, rescue etc. only add to the positive image of the units. Above all, the Gendarmerie Nationale has to be considered as a branch of the Armed Forces. In view of the training received by the officers and the relevant regulations governing the service, the overall character is definitely a military one. Distinguishing itself from the “traditional” branches Army, Navy and Air Force and despite the fact that members of the Gendarmerie served in the Lebanon, the Gendarmerie was almost exclusively concerned with domestic issues. As stated beforehand, the two major branches of the Gendarmerie Nationale – the Gendarmerie De´partementale and Gendarmerie Mobile – have to be considered separately. While the Gendarmerie De´partementale is mainly concerned with matters of public surveillance and the maintenance of order covering intervention in riots, the Gendarmerie Mobile is more concerned with defence and the restoration of order including operations from countering insurrection to all conventional war operations. Thus, the scope of responsibilities places the Gendarmerie Mobile into an intermediary position between the standard military forces and civilian police forces. According to some voices in the literature however, there is a “general and universal reluctance to employ the Armed Services in matters of internal order”.179 To do so is feared to reduce public support for them in their external roles. In the face of the history of the French Armed Forces and the Gendarmerie, the French Armed Services consisted almost entirely of conscripts in 1889. The Gendarmerie Nationale however, was subsequently designed as a fully professional force for it was feared, that conscripts would be potentially reluctant to suppress activities of their fellow citizens. Though these scruples could be waived to some extend and the fully professional composition was abandoned in 1971, the Gendarmerie remains to almost 90% a professional force.

ccc)

Police Nationale

Basically and as illustrated above, France is holding two Security Services, the Gendarmerie Nationale and the Police Nationale.180 Though both have broadly speaking a similar scope of duty, their geographic fields of application differ distinctly from each other. While the Gendarmerie is responsible for rural areas, 179

Drusilla Wiffen and Martin Edmonds “La Gendarmerie Nationale. A Blueprint for the Future of Internal Security Provision in the West?” Defense Analysis Vol. 5, No. 2, pp. 139–151 (145). 180 In France, the term “police” does not only refer to the forces, but also to the general concept of policing, meaning the maintenance of law and order.

58

A Comparative Law

the Police Nationale has its primary jurisdiction in cities and large towns, representing the main civil law enforcement agency of France.181 It comes under the jurisdiction of the Home Secretary and has about 125,000 employees. The scope of duties comprises the conduction of security operations like patrols and traffic controls as well as criminal enquiries under the supervision of the judiciary.182 The National Police has three priority tasks, bound to the obligation of their principles of professional conduct to guarantee the freedom and the defence of institutions of the Republic as well as to preserve peace and public order and protect persons and objects.183 The first is the maintenance of public peace and security. Beside law enforcement, it comprises the protection of individuals and property. Its second role is the acting as judicial police, to investigate and record crimes, to gather evidence and to hand criminals to the relevant authorities, everything under the direction and control of the judicial authority. The third task includes intelligence and information to detect any internal and external threats, likely to disrupt law and order, state institutions as well as vital interests and the sovereignty of the French Nation. The National Police is complemented by the Municipal Police, responding to the city mayors, unarmed, and with no judicial authority. The structure of the National Police is divided into three corps, the “Authority and Enforcement Corps”,184 the “Command and Management Corps”185 and the “Conception and Direction Corps”.186 Though the police forces conduct most criminal enquiries, the judiciary may choose either service and give the enquiry to each of them at its own discretion. However, the Gendarmerie Nationale is not the only security force in France that could deal with public protests and insurrections. The Gendarmerie’s procedural requirement of acting only on receipt of a requisition order from a Pre´fet does not apply to the anti-riot section (CRS) of the Police Nationale, making the CRS available on short notice. Compared to the Gendarmerie Mobile, this anti-riot section is less heavily armed and less widely dispersed. They are based in larger cities and have an establishment of approx. 15,000 members. Considered as a type of intermediary force between the Gendarmerie De´partementale, the Police Nationale, and the Gendarmerie Mobile, the CRS is only responsible to the Minister of the Interior. Consequently, the CRS is subjected to fewer procedures and can be deployed more flexible. These characteristics result in the CRS being the preferred instrument to engage in demonstrations and riots whereas the Gendarmerie 181

Its main concerns are large cities from 20,000 urbanites and up. An overview over the key areas of these duties is given by the General Directorate of the National Police at http://www.interieur.gouv.fr/sections/a_l_interieur/la_police_nationale/ presentation-generale, visited May 22nd 2010. 183 Marcel Chourry “Zwei Aspekte der franz€ osischen Polizei” Auf dem Weg zu einer europ€ aischen Polizei, Rolf Moire´, Manfred Murck, Rainer Schulte (eds), Stuttgart 1992, pp. 192–198 (193). 184 Corps de maıˆtrise et d´application. 185 Corps de commande et d´encadrement. 186 Corps de conception et de direction. 182

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Nationale is fallen back upon only if the French society is threatened with serious insurrection and internal violence.

ddd)

Cooperation

The nature of the French system is to have two different forces carrying out the police missions, both of them reporting to the same authority, the Ministry of Interior. While the difference between these two units lies in the framework of their employment, redundancy within the National Gendarmerie and the National Police exists and is cultivated. It is the military character that makes the Gendarmerie faster deployable and that prohibits trade unions and the right of strike. As a consequence, recruitment bridges exist between the armed forces and the gendarmerie, while more gendarmes serve abroad in peace operations than policemen do. Apart from that, two different units exist to combat terrorism in France: while the fast quick response unit named GIGN (“Groupement d’Intervention de la Gendarmerie Internationale”) is part of the Gendarmerie National and under the command of the Minister of Defence, the RAID (“Recherche-Assistance-InterventionDissuasion”) is part of the Police Nationale and under the control of the Home Secretary. In cases of serious threat to the state through terrorism, both Gendarmerie and Police are responsible. Continuing cooperation between the armed forces and other government authorities is possible in the area of civil defence, e.g. in cases of natural catastrophes and maintaining public order, relating to an act from the year 1959. Principally responsible for such a mission is the prefect. One of these special fields of cooperation is the fight against terrorism. To further its implementation, a number of action plans exist. In practice, the armed forces work closely together with the police forces to provide a dense supervision of all public services. According to article 17 of the decree from January 7th 1959, the Home Secretary may use the facilities and infrastructure of the armed forces and, if necessary, their assistance to maintain public order. He is responsible for Civil Defence including the mission to take any measure of prevention and render assistance as requested to safeguard the populations, environment and properties.

jj)

Greece

aaa)

Armed Forces

The Greek Constitution mentions the armed forces only on one occasion, relating to the President as the Commander-in-Chief of the armed forces.187 Specific tasks of the armed forces is thus stipulated by other means, such as a national defence policy. 187

Article 45 of the Greek Constitution.

60

A Comparative Law

Peacetime objectives of the armed forces is the continuous alertness for the security of the national territory, the maintenance of high operational readiness for the prevention and effective confrontation of dangers and threats as well as the ensuring of rapid response capability, the contribution to international security and peace and the contribution to activities of social aid and the support of state services for the confrontation of emergency situations. National defence is being planned and developed in a specific strategic context, which consists of the National Strategy, the National Defence Policy and the National Military Strategy. The Greek National Strategy mentions the defence of the national independence, sovereignty and integrity against any threat among the fundamental principles. The cornerstone of this strategy consists of the protection of the Greek sovereign rights, the respect towards international borders and conventions, the observance of international law, as well as the peacetime settlement of disputes. Since the policy of national defence is considered as a part of the national strategy, its aims are described somewhat more precisely. It is grounded on the basic principles and objectives as to protect the overall national independence, sovereignty and integrity of the country against any threat, to support national interests all over the world, to support the country’s European course, to participate in organisations such as the UN, the EU, NATO and OSCE, to reinforce the country’s position in the Balkans, to maintain an active presence of Greece among the countries of the Black Sea region and the Eastern Mediterranean, to develop an active and dynamic military diplomacy with a view to the promotion of political security, peace and partnership in the Balkans, the Black Sea and the Eastern Mediterranean, to develop a multilateral political, financial, cultural and social cooperation in this region and to maintain an effective functioning of the country as a metropolitan centre of Hellenism.188 Determined by the Governmental Council on Foreign Affairs and National Defence, the Ministry of National Defence formulates the National Military Strategy, providing guidelines for the use of defence powers, development of defence planning as well as the planning of force structures and general decision making on defence issues. It can be clearly concluded from the wording, that the central axis of the Greek National Military Strategy still is the deterrence of the Turkish threat and only secondarily the repelling of impending threats from other directions. Yet the Greek armed forces are currently facing an impending review of Law 2292/1995 aiming at bringing the armed forces to a more modern operational level.189 Over the past years, Greece has assumed an active role in promoting and consolidating peace and stability and countering terrorism by participating in international peacekeeping operations. Though Greece has developed a visible 188

For a complete enumeration, please refer to the Greek Ministry of Defence, http://www.mod. mil.gr/Pages/MainAnalysisPage2.asp?HyperLinkID¼2 and to the Hellenic National Defence General Staff at http://www.geetha.mil.gr/, visited May 22nd 2010. 189 Law 2292/1995 “Organisation and Operation of the Ministry of National Defence, Command and Control of the Armed Forces and Other Clauses”.

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and decisive presence in the Balkans and South Eastern Europe, it also contributed to other missions such as Operation Active Endeavour and Operation Enduring Freedom while participating with observers in small-scale peacekeeping operations.190 bbb)

Police Forces

Prior to 1984, Greece held both a Gendarmerie “Chorofylaki” and Urban Police Forces “Elliniki Astynomia”. These individual entities were merged in 1984 and formed the basis of today’s Hellenic Police.191 The Hellenic Police Forces has the basic mission to ensure peace and order as well as citizens’ unhindered social development including general policing duties and traffic safety. Additional tasks arise from the duty to prevent and interdict crime as well as to protect the State and the democratic form of government within the framework of constitutional order, a mission that also includes the implementation of public and state security policy. The Hellenic Police Forces are typically limited in the use of coercive force and are obliged to recourse to non-violent means while maintaining and enforcing law. A use of force is only permitted when absolutely necessary and to the extent envisaged and required for law enforcement.192 Accordingly limited is the use of firearms. The Greek police forces are composed of central and regional services and led by the headquarters as the supreme authority over these services. It operates within the framework of the Ministry of Public Order by supervising and administering the necessary conditions to ensure the duly functioning of the law enforcement agency. ccc)

Border Guards

The Greek Border Guards have been established to counter issues of illegal immigration and cross-border crime and are mainly deployed in areas with a large number of illegal immigrants.

kk) aaa)

Hungary Armed Forces

The Hungarian Armed Forces are composed of the specific military forces (land, naval and air forces) and the Border Guard. While the army is considered as a 190 Hellenic Contingent in Albania (HCA, ca. 100 soldiers), Hellenic Contingent in Bosnia (HCB, ca. 160 soldiers), Hellenic Contingent in Kosovo (HCK, ca. 1,500 soldiers) and Hellenic Contingent in Afghanistan (ca. 160 soldiers). 191 Law 1481/1-10-1984, Government Gazette 152 A. 192 Article 2 e) of the Code of Police Ethics, Presidential Decree 254/2004

62

A Comparative Law

regular military force, the border guard is responsible for the safeguarding of the national borders, the monitoring of cross-border traffic and the maintenance of law and order on the border. References of the Hungarian Constitution to the armed forces are stipulated in Article 19 j) according to which the Parliament decides on both internal and external deployments, e.g. peacekeeping operations. Article 19B (1) a) assigns the right to decide on the participation of armed forces in peacekeeping missions, humanitarian operations in foreign theatres and the stationing of armed forces in foreign countries to the National Defence Council. Article 19C regulates the use of armed forces and emergency measures while Article 19E stipulates the procedures following a foreign attack. However, Article 40A and Article 40B of the Hungarian Constitution provide a framework concerning the duties of the armed forces and the police forces. According to Article 40A (1), fundamental duty of the armed forces is the military defence of the country and participation on collective defence duties under international treaty.193 Generally the security condition in Hungary is classified into three categories. During a time of peace, all defence-related issues and operations are directed by Parliament, the President of the Republic of Hungary, the Government, the Minister of Defence, the Minister of Interior and further ministers as far as concerned in respect to special tasks, provided for by the relevant provisions of law. During a time of war194 or in a state of emergency,195 further reaching provisions come into power.

bbb)

Border Guard

The Hungarian Border Guard is composed of central, territorial and local organs. Central organ of the border guard is the National Headquarter of the Border Guard while the territorial organs are composed of the directorates which operate directly subordinate to the National Headquarters. The local organs are comprised of the border guarding and border traffic controlling units, following the operational pattern of the directorates. According to the military character of the border guard, the personnel consist of border guards serving actual military service but also of reserve staff and civil, respectively public servants.

193

La´szlo´ Po´ti, Judit Taka´cs and Elemı´r Necej (ed.), “The Case of the Schizophrenic Musterknabe: Hungary”, The Security Strategies of the Austria, Czech Republic, Hungary and Slovakia in the Context of the European Security Strategy, Vienna 2005, p. 20–32 (27). 194 State of war or immediate threat of an armed attack by a foreign power, as defined by the National Security Strategy. 195 Armed acts aimed to subvert the constitutional order or to take exclusive power, serious violent acts committed using arms or by armed individuals endangering the security of life and/or property of citizens on a large scale, disaster by the elements or industrial catastrophe as defined by the National Security Strategy.

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To the same extend as the Hungarian Constitution defines the mission of the armed forces, general duties of the Border Guard derive from Article 40A (1). Since the Border Guard is allocated to the armed forces, its missions are defined as to guard the borders, to monitor and control border traffic. Police related activities of the Border Guard derive from the Border Guard Act. } 22 of said act assigns following missions to the Border Guard: the carrying out of alien policing tasks, the guarding of state borders, the prevention of illegal border crossing, the maintenance of order on the borders, the repelling of violent acts endangering the border, execution of border traffic control, the conducting of criminal investigation, the handling of conflicts and refugee emergencies, the execution of petty offence jurisdiction and the carrying out of policing tasks in case of state emergency.196 In accordance with } 21 of the Border Guard Act, the Border Guards introduce special or reinforced service for local border guarding and border traffic control, defending the state borders according to the National Defence Plan, enlisting civil assets and technical equipment, conduct visual reconnaissance of low-level flying targets at the state borders, participate in the rescue of population and assets in evacuation and the carrying out of other tasks defined by Act No. CX (1993), Section 22. Additional missions derive from the participation of Hungary in peacekeeping missions. Due to the close cooperation of the Border Guard with the National Armed Forces in the defence of national independence, inhabitants, assets and territorial infringement, the Hungarian Border Guard are perceived as being closely affiliated to the military. Additional cooperation is possible in the field of emergency evacuation and the control of border crossings and the guarding of objects. However, the close affiliation of the Border Guard with the armed forces was not beyond dispute.197 Border guarding is regularly rated as a law enforcement task instead of a military mission since it is part of the responsibility to maintain public security and internal order. In addition, the concrete activities comprise mainly alien policing and crime investigation tasks that are in turn governed by Alien Policing Act (2002), Asylum Act (1997), Border Guards Act (1997), the Code of Criminal Procedure (1997) and the Criminal Procedure Code (1997).198 According to the perception of violators of law and regulations as citizens and not enemies, the need to separate border-guarding services from the military became louder. Finally, the realisation spread that a unified border guarding system would be much more efficient to operate.

196

Colonel Zolta´n Szabo´ “Border Security Systems: The Hungarian Case Study”, DCAF Working Paper Series – No. 6, pp.4, 6. 197 Colonel Zolta´n Szabo´ “Threats and Challenges in the field of Border Security – The Hungarian Experience”, http://pforum.isn.ethz.ch/docs/BDBBE049-558A-4F8E-9DE1F9EFC8A5A731.pdf, visited May 22nd 2010. 198 Additional laws and regulations determining tasks and competences of the Border Guards beside the Constitution are the Police Act (1994), Act of Contravention (1999), Disaster Management Act (1999), National Defence Act (1993) and Border Guard Service Regulation (2001).

64

ccc)

A Comparative Law

Police Forces

Hungary holds one national police force but no Gendarmerie and no municipal police forces.199 The Hungarian police forces are subdivided into 20 county police headquarters and some 150 local headquarters. Hungary put in great efforts to decentralise and depoliticise its police force leading to the enactment of the 1994 Police Act. Due to these efforts, the idea of police under municipalities never gained approval during the modernisation of the Hungarian police. However, the principle of restraint on political party influence is confirmed by several articles of the Act XLIII of 1996 on the Service Relations of the Career Members of the Armed Forces.200 Fundamental criticism was also expressed concerning the former militarised character of the Hungarian police. Yet some characteristics – such as the relatively strong internal discipline – still attract criticism after the modernisation of the Police Act. Not undisputed was also the legal provision of the Code of Criminal Procedure considering career police officers as military personnel, thus falling into the scope of investigation of military prosecutors.201 The scope of responsibility of the police forces is determined by the legislative framework and as such the Hungarian Constitution and the Police Act. Prior to the enactment of the Police Act, Hungarian police forces lacked basic legal status since both establishment and regulation was conducted by governmental and ministerial decrees and not by parliamentary statute.202 Their fundamental mission is stipulated by virtue of Article 40A (2) in Chapter VIII of the Constitution. According to this provision, the police forces are charged with the maintenance of public safety and domestic order. Though additional and more detailed definitions of the tasks derive from the Police Act, this main mission has been reiterated in Article 1 (1) of the Police Act.203 By virtue of Article 3 (1) of the Police Act, the police forces are defined as “the armed force of the state protecting public order and carrying out tasks related to crime prevention, crime detection, public administration, and general law enforcement”. The essential and permanent objectives of the Hungarian Police Forces are defined in a more detailed manner by Article 1 (2) and Article 2 (1), (2), and (4) of the Police Act. According to these provisions, the police forces are assigned tasks relating to crime prevention and detection, to prevention and detection of administrative offences, to the policing of foreigners and refugees, to authority regarding instruments and substances dangerous to public safety, to traffic

199

See http://www.interpol.int/public/Region/Europe/pjsystems/Hungary.asp, visited May 22nd 2010. 200 ´ Eva Keresztes Dimovne´ “Hungarian Police Reform”, p. 12, see http://se2.dcaf.ch/serviceengine/ Files/DCAF/18911/ichaptersection_singledocument/386db5a9-b064-485b-902f-b260e350f658/ en/ch.3.pdf, visited May 22nd 2010. 201 ´ Eva Keresztes Dimovne´ “Hungarian Police Reform”, supra, p. 25. 202 Relevant provisions were the seventeen statutory rules on State and Public Safety of 1974, the Decree of the Council of Ministers on Police (39/1974 XI.1) and the twenty-two statutory rules on the Use of Firearms by Police of 1963. 203 Act XXXIV of 1994 on the Police.

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authority and maintaining order at public places, to protection of life and bodily integrity of protected persons, to guarding of specific establishments, to the licensing and supervision of private security guards, to assisting municipal guards, to protection from actions directly endangering or violating life, bodily integrity or property of people, assisting and counselling those in need as well as to actions against international crime based on international treaties and reciprocal cooperation with foreign authorities. Over and above, not only the armed forces are in charge of the national defence, also police forces, civil national security services, penitentiary organisation, customs and excise guard, national Disaster Protection Directorate of the Ministry of Interior as well as its territorial and local organs and professional local governmental fire department are accountable for the defence of the nation and perform this task accordingly.

ll) aaa)

Ireland Armed Forces

The exclusive right to raise and maintain military and armed forces in the Oireachtas is provided by the Constitution of Ireland. The legislative standing of the armed forces pursuant to the Constitution derives from the Defence Act 1954, the primary legislative instrument concerning the O´glaigh na hE´ireann, the Irish Defence Forces. Most recent amendment to the Defence Act has been the Defence Amendment Act of 1998, allowing for a reorganisation of territorial boundaries and the Defence Forces’ Headquarters organisation. The State’s defence policy is laid out in the White Paper on Defence, aiming at an appropriate defence capability with regard to the change in defence and security environment.204 According to this White Paper, the assigned roles of the Defence Forces are the defence of the State against any form of armed aggression, aid to the civil power, the participation in multinational peace-support operations, crisis management and humanitarian relief operations, the providing of fishery protection service and the general obligation to carry out other duties as may be assigned from time to time.205 The defence of the State against armed aggression is based on considerations and ongoing Governmental assessment of threats. Aid to the civil power includes in practice to assist, when required, the Garda Sı´ocha´na, which holds the primary responsibility for law and order, including the protection of the internal security of the State. Multinational peace-support operations may be executed in support of the United Nations as well as mandated by the UN and include regional security missions authorised by the UN. Other duties as claimed in the Defence Forces’ Strategy Statement may comprise tasks of search and rescue, air ambulance service, 204

The present White Paper on Defence dates from the year 2000. See “Defence Forces´ Roles, Mission, and Vision”, Defence Forces Strategy Statement 2003–2005, p. 3, updated by the Defence Forces´ Strategy Statement 2005–2007.

205

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A Comparative Law

Ministerial air transport service, assistance on the occasion of natural or other disasters, assistance in connection with the maintenance of essential services, as well as assistance in combating oil pollution at sea. Summarised in a Mission Statement, the Defence Forces’ mission is “to contribute to the security of the State by providing for the military defence of its territorial integrity and to fulfil all roles assigned by the Government, through the deployment of well-motivated and effective Defence Forces”. Key objectives associated with this goal are to ensure that the delivery of emergency and non-emergency support and assistance to the civil authorities is planned and carried out efficiently and effectively, to improve the efficiency and effectiveness in the delivery of fishery protection provided by the Defence Forces, and to secure working protocols by means of Memoranda of Understanding and Service Level Agreements with all client Departments, agencies and service recipients for the provision of services.206 Alongside these objectives, the Defence Forces formulated their aim to utilise Defence Forces’ resources efficiently and effectively in the provision of Government support services.207 bbb)

National Police

Ireland’s National Police Service, An Garda Sı´ocha´na, exercises all police functions in the country. Its tradition can be traced back to the establishment of the County Constabulary in 1822 and while it was later changed into the Royal Irish Constabulary, it nowadays provides the State security services and performs all criminal and traffic law enforcement functions. In distinction to other police units, the Garda Sı´ocha´na does not carry firearms, a tradition the service is especially proud of. This has been the situation since 1922 when the first Commissioner declared “The Garda Sı´ocha´na will succeed not by force of arms or numbers, but on their moral authority as servants of the people” and reflects the ideology of the service, whose name literally means “Guardians of the Peace”. The uniformed and unarmed officers are supported by approximately 1,700 Detective Gardai around the country who carry firearms and always work in plain clothes. These members work closely with their uniformed colleagues and are available as armed backup whenever the need arises. While the Commissioner is responsible for the general direction, management and control, he is responsible to the Minister of Justice, Equality and Law Reform who in turn is responsible to the Da´il, the Irish Legislature. Concerning the geographical layout, the country is divided into six regions, each of which is commanded by a Regional Assistant Commissioner. Each region is again divided into divisions commanded by a Chief Superintendent and each division is divided into districts commanded by a Superintendent and again divided into sub-districts, consisting of one station. 206 Mission Statement as defined in the Defence Forces´ Strategy Statement 2003–2005, p. 3, supra, updated by the Defence Forces´ Strategy Statement 2005–2007. 207 Strategic Goal No. 4 as defined in the Defence Forces´ Strategy Statement 2003–2005, p. 16, supra, updated by the Defence Forces´ Strategy Statement 2005–2007.

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The function of the Garda Sı´ocha´na is to provide policing and security services for the State with the objective of preserving peace and public order, protecting life and property, vindicating the human rights of each individual, protecting the security of the State, preventing crime, bringing criminals to justice, including by detecting and investigating crime, and regulating and controlling road traffic and improving road safety.208 According to subsection 2 of the Act, the Garda Sı´ocha´na shall co-operate, as appropriate, with other Departments of State, agencies and bodies having, by law, responsibility for any matter relating to any aspect of abovementioned objectives. According to the Garda Strategy Statement, the mission of the service is to achieve the highest attainable level of personal protection, community commitment and State security.209 Additional tasks are somewhat hard to define, since also the Irish police system is based on the Common Law, resorting to prudence and rationality of the population.210 ccc)

Civil Defence

Civil Defence is an organisation consisting of approx. 6,000 members voluntarily contributing to tasks like First Aid, Search and Rescue, Fire Fighting, Radiation Monitoring, Radio Communication, etc. The Irish Civil Defence was set up in 1950 as a part of the national defence structure. Designed to perform non-combatant tasks, the Civil Defence is articulated in 32 administrative areas, based largely on local authority administrative areas.

mm)

Italy

Just as any other European Member State, Italy holds regular branches of military services. Still, a distinctive feature is the creation of hybrid institutions with military as well as police characteristics. aaa)

Armed Forces

The constitutional framework of the Italian Armed Forces211 is mainly regulated in Articles 11 and 52 of the Italian Constitution, whereas the latter also appoints the 208

Garda Sı´ocha´na Act 2005, Subsection 7 (1). An Garda Sı´ocha´na Strategy Statement 2010 - 2012, see http://www.garda.ie/Documents/User/ GardaStrategy2010_ENG.pdf, visited May 22nd 2010. 210 Thomas O´Reilly “Zur Geschichte der Polizeiarbeit in Irland”, Auf dem Weg zu einer europ€aischen Polizei, Rolf Moire´, Manfred Murck, Rainer Schulte (eds), Stuttgart 1992, pp. 214–219 (215, 219). 211 Members of the Army, Navy, Air Force and Customs Guard (“Guardia di Finanza”) are regularly referred to as Military Persons while the definition National Armed Forces refers to all military forces. 209

68

A Comparative Law

rights and duties of the military personnel. There is however no explicit rule concerning the mission of the armed forces in the Italian Constitution. Designated areas of deployment cover operations on national territory as well as outside the national territory. A restructuring of the armed forces entailed in addition an enhanced capability for multinational integration in PSOs. Basic idea of the founding fathers of the constitution was to lead their armed forces to democracy by avoiding any interference with political issues. This comprised an express rejection of professional, mercenary or praetorian troops in order to meet the basic requirements of democracy.212 After a structural reform and reorganisation of the ministry of defence and the armed forces, numbers of military personnel have been reduced to 250,000 soldiers while allowing for a further cutback in personnel to 190,000 soldiers at the governments discretion.213 While voluntary service has been introduced by now, obligatory service will only be reestablished in exceptional cases, such as the declaration of state of war. The abolishment of conscription has well been considered as being compatible with the increased democratic character of the military. The verdict of the public concerning the democratic accountability of the Italian armed forces today is quite positive, since several questionable incidents stained the reputation of the military during the past.214 Especially in Italy, distinctly different borderlines have emerged compared to those attributed to Germany. Though the constitutionally appointed task is the defence of the fatherland (“patria”), it does not hinder an operation of the armed forces in other fields. The perception of the term “armed forces” comprises in particular the Arma di Carabinieri and the Guardia di Finanza, both of which define their functional range with specific police tasks.215 The necessary statue to expanse the tasks of the armed forces was of July 11th 1978, No. 382 on “Principle of Military Discipline”.216 Further expansion of tasks was subsequently achieved by decree-laws, converted into parliamentary statutes. In addition to the defence of the integrity of the fatherland, an authorisation to engage in multinational peace-support operations was constituted by governmental decree of November 28th 1997, No. 464. In addition, a noteworthy authorisation was included to participate in issues of environmental protection as well as the

212

J€org Luther, “Military Law in Italy”, in European Military Law Systems, ed. by G. Nolte, p. 431. According to the Law of November 14th 2000 “Rules for the Institution of the Professional Military Service” (No. 331/2000). 214 The discovery of various coup d´e´tat plans is often referred to as having accelerated the democratisation process in the Italian military. 215 J€org Luther, “Military Law in Italy”, in European Military Law Systems, ed. by G. Nolte, p. 436 et seq. 216 Principles of Military Discipline“: The task of the army, navy, and air force 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.” 213

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utilisation for public purposes.217 For instance, the decree authorises a use of the armed forces for campaigns against forest fires, release of meteorological data, release of periodical bulletins on avalanche risks, and for many more tasks that prima facie seem at odd with the traditional military mission. Eventually a new law defines “Rules for the Institution of a Professional Military Service” while adding further clarification to the principal mission of the armed forces.218 According to this proviso, “the defence of the state has priority among the tasks of the armed forces” as they are “obligated to carry out specific tasks in circumstances of public calamity and in other cases of extraordinary necessity and urgency”. Activities of the armed forces must furthermore conform to aforementioned Article 52 of the Italian constitution. Despite varying interpretations, the defence of the patria is the highest priority mission of the armed forces, however allowing the government to use the armed forces for other purposes, provided that democratic principles lead to a respective decision.219 In addition, activities must conform to Article 11 of the Italian constitution. This war-repudiation provision is likewise subjected to varying interpretations, though a broad majority gives priority to an interpretation that allows a deliberation of the development of the international rule of law. This intermediate position applies the war-repudiation clause to any armed conflict with the potential to offend the freedom of a population and thus objecting their sovereign right to political selfdetermination. However, this interpretation recognises unique sovereign rights and does not interdict counter-offensive military operations or preventive actions. International peacekeeping and peace-support operations are alike considered as permissible under the condition that they do not violate international law and that the rules of the international organisation fulfil the requirement of reciprocity. A slightly deviant interpretation demands a recommendation or authorisation by the Security Council to apply the war-repudiation clause to multinational peacekeeping or peace-support operations.220 It arises as a result, that ordinary law rather than constitutional law defines the tasks of the Italian armed forces.

1)

Arma di Carabinieri

A specially combined authority designed to protect internal and external security is formed of two special departments of the armed forces. One of these departments is the Arma di Carabinieri which comes under both the authority of the Ministry of Interior from a functional point of view as its duties to safeguard public order and 217

J€org Luther, “Military Law in Italy”, in: European Military Law Systems, p. 437 et seq. Law No. 331 of November 14th 2000. 219 J€org Luther, “Military Law in Italy”, in: European Military Law Systems, ed. by G. Nolte, p. 439. 220 J€org Luther, “Military Law in Italy”, in: European Military Law Systems, ed. by G. Nolte, p. 440. 218

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A Comparative Law

safety are concerned and the Ministry of Defence for the discharge of its military duties. Founded in 1814 to defend the nation and maintain pubic order, the Carabinieri form an integral part of the regular Italian armed forces as a fourth branch beside the three traditional branches army, navy and air force. In contrast to the French Gendarmerie, the Carabinieri are considerably stronger influenced by their military ties since they are at the command of the Ministry of Defence in most respects. Given the fact that the personnel are entirely recruited from the army, these military ties are even intensified. By their nature, they are a paramilitary corps with police duties, serving also as the Italian military police.221 Compared to the French Gendarmerie, the Carabinieri remain even more militarised and have participated in all of the country’s military conflicts and in peacekeeping missions in Kosovo, Afghanistan and Iraq. Their primary responsibilities today in the field of police activity cover issues such as the combat against organised crime and riot control. Within the military scope of duty, the Carabinieri hold important functions like military police and combat force.

2)

Guardia di Finanza

The second police force with a military status at a national level is the Guardia di Finanza. Unlike the Arma di Carabinieri, the Guardia di Finanza comes under the authority of the Treasury Secretary (Ministry of the Economy and Finance) and are also part of the military. In correlation with their name, its primary duty involves the investigation of money-related crimes, e.g. tax evasion, money laundry or smuggling and has been traditionally concerned with cross-border economic crime. At present, the Guardia di Finanza comprises 70,000 personnel, all of which with the official status of combatants. Thus, the Guardia di Finanza has more far-reaching competences and capabilities than the German Zoll. However, the Guardia di Finanza is officially the eldest police force of Italy, developing from the “Legione Truppe Leggere” which was established by King Viktor Amadeus III on October 1st 1774. Like the Carabinieri, the Guardia di Finanza is structured and organised along military lines and has a dual affiliation with the Ministry of Defence and the Ministry of Finance. In contrast to the Carabinieri, it combines duties of law enforcement with military defence tasks. A very distinct feature of the Guardia di Finanza is their highly developed naval component, enabling it to participate in naval warfare scenarios.222 This characteristic is mainly due to the long coastline of Italy and the fleet of armed patrol boats and helicopters. 221 Derek Lutterbeck, “Between Police and Military. The New Security Agenda and the Rise of Gendarmeries”, supra, p. 48. 222 This naval capability implicated the Guardia di Finanza in various naval battles in the Mediterranean during WWII.

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bbb) 1)

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Police Forces Polizia di Stato

The State Police constitutes the main police force of Italy, comprised of police personnel under the authority of the Police Unit within the Ministry of Interior. Unlike the Carabinieri, it is a civilian police force and although the internal structure is in some aspects military influenced, its personnel is composed entirely by civilians. As of 1981, the Polizia di Stato is no longer governed by military regulations. However, the Polizia di Stato remains distinctly militarily organised and structured. Twelve departments of the Dipartimento della Pubblica Sicurezza lead and administer all branches of the Polizia di Stato which is composed of two services, the Polizia Administrativa and the Polizia Giudiziaria. In its function as the National Police of Italy, the Polizia di Stato performs common patrolling, investigative and law enforcement duties and is responsible for patrolling the Italian highway network. Furthermore, it is responsible for the security of waterways, railways and bridges. Over the last years, a new type of police unit called Polizia di Quartiere has been established, aiming at an increased presence of police patrols to deter crime. 2)

Polizia di Penitenziaria

Another branch, the Polizia di Penitenziaria, operates within the Italian prison system, organising the transportation and guarding of inmates. The Prison Police Corps comes under the authority of the Ministry of Justice and is governed by civil regulations as part of the Italian law enforcement authorities. 3)

Corpo Forestale dello Stato

The roots of the Corpo Forestale dello Stato can be traced back to the establishing of an organised forestry commission by royal decree of October 15th 1822. Similar to the Prison Police Corps, the State Forestry Department is a national police agency governed by civil regulations. Specialised in safeguarding the country’s natural heritage and preventing and repressing environmental violations, the State Forestry Department is answerable to the Ministry of Agriculture, Food and Forestry. Most likely, the Corpo Forestale dello Stato can be compared to Park Rangers, since their duties comprise the fight against poachers and the prevention of forest fires. Cooperation is possible with other governmental authorities such as the Alpine Troops Command to participate in mountain rescue operations. Especially latter responsibility grants the service a relatively good standing among the population. 4)

Polizia Provinciale and Polizia Municipale

The name Polizia Provinciale is a general term to identify provincial-level police forces in Italy where each province has its own police force. Since their

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competences are not very well defined, their duties are often found to be overlapping with other police forces.

ccc)

Cooperation and Combined Operations

The Italian constitution differentiates defence related issues from public security issues in its Article 117. According to this rule, only authorities charged with public security matters may avail measures restricting personal liberty. Article 13 of the constitution clearly assigns these matters to the police, calling for a validation of the measures by the judiciary. However, this does not imply a strict separation between the police and the armed forces. The borderline between police and armed forces is notably less strict than in Germany. In case of cooperation, armed forces may not apply certain restraining measures – except for military criminal procedures – as the Arma di Carabinieri and the Guardia di Finanza are authorised to. Since the prefect acts as representative of the national government on a regional level, he may call on armed forces to maintain public security in exceptional cases. Deemed needed for such recourse is the consideration of political authorities that a safeguarding of free institutions can only be achieved by such measures. A traditional adaptation of this principle has developed in the case of elections, when armed forces guard polling stations. Several statutes allow the prefect to recourse to “other armed forces” to maintain public security and order, provided by the five separate Italian police forces, the Arma di Carabinieri, Guardia di Finanza, Polizia di Stato, Polizia Penitenziaria and Corpo Forestale dello Stato. A technical and operational cooperation of all police forces is ensured by the Police Unit according to Law No. 121 of 1981 within the Ministry of Interior. Besides governing the administration of public security, this law also stipulates regulations concerning a cooperation of other law enforcement authorities. In addition, it assigns the function of coordinating duties and activities of the police forces to the Ministry of Interior due to its competence as the national authority in charge of law enforcement and the maintenance of public order and safety. Nevertheless, such recourse to armed forces is only admissible in exceptional situations and requires a threat to the constitutional institutions of the state. An almost traditional deviation from this principle is the assignment of armed forces to safeguard election offices. Additional executive acts designate tasks of maintaining public security to the armed forces, e.g. operations against organised crime, border control in some regions of Italy or offshore operations to counter illegal immigration by the Marina Militare.223 During such operations, members of the armed forces may be authorised to verify the identity of persons or to search persons and means of transportation. These measures also include the delivery to the police.

223

Prominent operations took place in the region of Sicily, Calabria, Naples, and within the context of border crossing control within the region of Friuli-Venezia-Giulia.

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Though prime example is the constant fight against organised crime in Italy also other security responsibilities have been allocated to the armed forces. Arising from this application, armed forces were authorised to conduct identifications as well as to search persons and vehicles. Permissible operations may be performed abroad as well as at home. Operations outside the national territory come into question as deployments within the scope of crisis management, humanitarian aid or other combined operations with civilian aid organisations as well as the evacuation of state nationals.224 Generally speaking, any application of the armed forces is imaginable, provided that this task is introduced by a new law, either specifying the primary mission of defending the patria, or aiming at the enforcement of other specific constitutional values.

nn) aaa)

Latvia National Armed Forces

Legal documents stipulating democratic control over the National Armed Forces include among others the Constitution of the Republic of Latvia (“Satversme”), the National Armed Forces Law and the National Security Law. The Latvian Parliament decides about a possible declaration of war as well as about a participation of the National Armed Forces (NAF) units in international peacekeeping and security operations. Thus, military combat operations cannot be undertaken without the consent of the state’s political leadership. Basic strategic principles of the armed forces are determined in the National Armed Forces Law225 and the State Defence Concept,226 both of which referring to the guarantee of the national sovereignty, territorial integrity and the security of the population as basic tasks of state defence. The overall mission of the National Armed Forces thus comprise the defence of the Latvian national sovereignty, its territorial integrity and residents from military aggression, the maintenance of high combat readiness of the NAF units, their capability to participate and be deployed in international operations on their own, the provision of efficient command and control of the NAF, as well as fostering of continuous NAF modernisation and enhancement of professional combat training. Besides that, the mission covers cooperation with state civil institutions and society, providing of assistance during

224 J€org Luther “Military Law in Italy”, in European Military Law Systems, ed. by G. Nolte, pp 438 et seqq. 225 See: National Armed Forces Law, Chapter I, Section 2 (2) and Chapter II, Section 6 (1) as amended May 3rd 2005. 226 See: State Defence Concept of the Republic of Latvia, 3. “Basic Strategic Principles of State Defence” and 4.1 “Tasks and development priorities of the NAF” as accepted by the Latvian Parliament on November 13th 2003.

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natural catastrophes and emergency situations.227 In addition, the NAF demonstrates its responsibility for society by assisting in natural and eventual catastrophe clearance, explosive ordnance disposal and search and rescue operations. A successful performance of the NAF tasks is ensured by public support and understanding about the role and tasks of the national defence system and armed forces. According to this concept, the development of the National Guard is also one of the priorities of the NAF. During an emergency situation or an impending threat of such situation, units of the NAF shall be involved in the provision of assistance to the civil defence system by order of the Minister of Defence.228 The National Defence Concept of Latvia is mainly based on the Swedish-Finnish concept of a rapid response force. This model requires a small group of career professionals and a mobilisation base. As from 2007, the Latvian army will be fully contract-based. Latvia cooperates with Estonia and Lithuania in BALTBAT (joint infantry battalion) and BALTRON (joint naval squadron), both available for peacekeeping operations. Relevant operations are governed by a Law on the Participation of the National Armed Forces of Latvia in International Operations of 1995.229 A deployment of the NAF during peacetime in accordance with the National Armed Forces Law requires the determination of the Minister of Defence and a preceding proposal from the Commander of the NAF.230 In addition, the decision needs to be approved by the Cabinet. However, a participation of the Parliament in the decision is unprovided for.

bbb)

National Guard

As a component of the NAF, the National Guard of the Republic of Latvia is a voluntary, militarised and public self-defence formation aiming at the involvement of citizens of Latvia in the defence of the national territory and society.231 Primary tasks of the National Guard beside the involvement of citizens are to ensure the readiness of its units for combat and mobilisation, to perform the legal and military preparation of national guardsmen and to participate in maintaining a lawful state order.232 Other operational goals of the National Guard are to ensure the 227

http://www.mil.lv/, viewed May 22nd 2010. See: National Armed Forces Law, Chapter IV, Section 17 (2) as amended May 3rd 2005. 229 Law on the Participation of the National Armed Forces of Lativa in International Operations of February 16th 1995, see http://www.am.gov.lv/en/security/basic/4535/ visited May 22nd 2010. 230 See: National Armed Forces Law, Chapter I Section 4. 231 Relevant legal basis for operations of the National Guard are the Constitution of the Republic of Latvia, the National Security Law, the National Armed Forces Law, the Military Service Law, as well as other laws and regulatory enactments and by-laws, see Section 4 of the Law on the National Guard. 232 See: Law on the National Guard of the Republic of Latvia, Section 2 as amended December 16th 2005. 228

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performance of support functions for the NAF and the state civil defence system by implementing diverse tasks and responsibilities. As defined in the State Defence Concept, the scope of responsibility covers the protection of objects vitally important to national security, the participation in evacuations of civilians, the coordination of cooperation with the State Border Guard, the provision of support functions for foreign armed forces within Latvia’s national territory assisting in the elimination of endangerment to the state, the provision of combat support and logistic units in the field of transportation, civil-military cooperation, supply, engineering and air defence.233 The National Guard shall cooperate with state and local government institutions but also with other units subordinate to the Ministry of Defence and the Police and provide support in crime prevention.234 According to the new structure approved in 2003, the National Guard will be an independent part of the National Armed Forces under the direct command of the National Armed Forces Commander. This new structure will be fully implemented in 2007. The new structure will assign new missions to the National Guard. It will perform the national territorial defence alone or by supporting the professional units of the National Armed Forces. Furthermore, it will ensure combat and mobilisation readiness and perform the support tasks of the host-nation. The new mission also covers the guarding of objects of national importance in the event of war or threat as well as the support in emergency situations. The National Guard consists of the National Guard Staff and two regions, each with 8 Infantry Battalions and two Specialised Battalions.235

ccc)

Police Forces

According to the Latvian Law on the Police, the term “police” comprises the State Police, the Security Police as well as local government police.236 While both the State and the Security Police perform their duties within the whole national territory of the Republic of Latvia under the supervision of the Ministry of Interior, the local government police units act within their relevant administrative territory.237 The police forces are furthermore subdivided into a Civil Police and a Criminal Police. The Civil Police comprises the State Police Central Civil Police administration and

233 See: “State Defence Concept of the Republic of Latvia”, 4.1 “Tasks and Development of the Ministry of Defence and the National Armed Forces” as accepted by the Latvian Parliament on November 13th 2003. 234 See: Section 3 of the Law on the National Guard of the Republic of Latvia as amended December 16th 2005. 235 See: http://www.mil.lv/, viewed May 22nd 2010. 236 Part III, Chapter IV, Section 15 of the Latvian Law on the Police as amended June 15th 2000. 237 The duties of the local government police are defined in Part III, Chapter IV, Section 19 of the Latvian Law on the Police as amended June 15th 2000.

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the Traffic Police, whereas the Criminal Police comprises the State Police Central Criminal Police administration among others.238

1)

State Police

The former State Police was established in 1918 not only to defend the recently declared independence but also to fight criminal activities in the aftermath of the war. In the course of the occupation of Latvia on the 24th of July 1940, the police ceased to exist. Today’s State Police developed from the militia, the only armed force to protect state institutions and other significant objects during the first stage of democratisation 1985–1991.239 The Latvian State Police of today is “an armed, militarised State or local government authority, whose duty is to protect from criminal and other illegal threats life, health, rights and freedoms, property, and the interests of society and the State”.240 Its tasks are to guarantee the safety of persons and society, to prevent criminal offences and other violations of law, to disclose criminal offences and search for persons who have committed criminal offences, to provide assistance in accordance with procedures prescribed by law to persons, institutions, undertakings, and organisations in the protection of their rights and the carrying out of tasks prescribed by law to implement, within the scope of its competence, administrative sanctions and criminal sentences.241 The cabinet, the Home Secretary and local government institutions supervise the operations of the police within their scope of competence.242 Subordinated structural units are the Main Criminal Police Department, the Main Public Order Police Department, the Railroad Police Board, the Pre-trial Investigation Board, the Forensic Centre of the State Police and the territorial police boards.243

2)

Security Police

The Latvian Security Police is a state administrative institution subordinate to the Home Secretary. In accordance to the National Security Law, the “Law on the Police”, the law on state security, and the statutes approved by the cabinet, it operates in the field of state security. Activities include reconnaissance and counter-espionage to fight terrorism, organised and economical crime, corruption

238

Part III, Chapter IV, Sections 17 and 18 of the Latvian Law on the Police as amended June 15th 2000. 239 See http://www.vp.gov.lv/?sadala¼143, visited May 22nd 2010. 240 Definition in the Latvian Law on the Police Chapter I, Section 1; see http://www.vp.gov.lv/ doc_upl/law_on_police.htm, visited May 22nd 2010. 241 Chapter I, Section 3 of the Latvian Law on Police as amended June 15th 2000. 242 Part III, Chapter VIII, Section 38 of the Latvian Law on Police as amended June 15th 2000. 243 Latvian Law on the Police, Chapter IV, Sections 16–20 as amended June 15th 2000.

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and the distribution of drugs. Beside that, it organises provisions to guard stateofficials and representatives of foreign and international organisations. ddd)

State Border Guard

The Latvian State Border Police controls and guards the state borders in accordance to the legislation of the Republic of Latvia, the Schengen Implementation Convention and the Schengen Common Manual. The Law on the Border Guard provides for relevant legislation according to which the mission comprises the prevention of illegal border crossings, the detection and detention of wanted persons, documents and vehicles on the state border, supervision of foreigner residence regulations and visa regime, surveillance over adjacent inland territory, port aquarium, inner and territorial waters as well as general customs duties.244 However, the Border Guard also renders assistance to preserve natural resources and helps eliminating the consequences of catastrophes within the border area. The State Border Guard also performs investigation of cases related to offences against the national border. According to said legislation the status of the unit as an armed administrative State authority is stipulated. As from January 7th 1997, the former Border Guarding Forces passed over to a subordination of the Ministry of the Interior. The Latvian State Border Guard are led by a Chief of Border Guard who supervises a Central Board composed of nine Regional Boards.245 eee)

Cooperation

A cooperation of the police forces with other state and local government institutions, undertakings and organisations is possible, since the wording of the Latvian Law on the Police allows unqualified assistance of such institutions in the field of security functions.246 In this respect, cooperation with armed forces is conceivable. A determined duty to assist military units and institutions exist however in the search for lost and stolen weapons, ammunition, explosives and other substances, articles and objects dangerous to the public.247

oo) aaa)

Lithuania Armed Forces

The Armed Forces of Lithuania are composed of regular forces, volunteer forces, and active reserve, whereas the regular forces comprise ground forces, military air 244

On November 27th 1997 the Saeima of the Republic of Latvia passed the Law on the Border Guard which was enacted on January 1st 1998. 245 Article 8.1 of the Law on the Border Guard. 246 Latvian Law on the Police, Chapter I, Section 7 as amended June 15th 2000. 247 Latvian Law on the Police, Chapter II, Section 11 as amended June 15th 2000.

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forces and naval forces.248 The mission of the armed forces is not expressis verbis defined in the Lithuanian constitution though defence related issues are dealt with in Chapter 13 of the Constitution. It follows, that as basic principle the defence of the state is assigned to each citizen of Lithuania.249 Principles beyond that are mainly related to organisation and basic conception of the Armed Forces, such as provisions relating to the appointment of the Commander of the Armed Forces,250 non-deployment of WMD,251 international obligations252 or the imposition of martial law. Article 142 states that “The Seimas shall impose martial law, call mobilisation or demobilisation, adopt decisions to use the armed forces when a need arises for the defence of the homeland or fulfilment of international obligations of Lithuania. In the event of an armed attack which threatens the sovereignty of the State or its territorial integrity, the President of the Republic of Lithuania shall immediately pass a decision concerning defence against an armed aggression, impose martial law throughout the country or in part of the country, declare mobilisation and submit these decisions to the next sitting of the Seimas (. . .) The Seimas shall approve or overrule the decision of the President of the Republic of Lithuania.” The Law on the Organisation of the National Defences System and Military Service253 defines in its Article 2 the Lithuanian Armed Forces as “the armed institution for defence of the state – the principal part of the national security system protecting the sovereignty of the state and the inviolability of its territory and air space, defending the state by means of arms from aggression or any other form of armed attack, and carrying out military missions consistent with international obligations of the Republic of Lithuania.” The law outlines in its Article 12 the peacetime missions to protect the territory of the State including airspace, territorial waters and exclusive economic zones in the Baltic Sea, to maintain operational readiness and to provide assistance to police and civil authorities within the limits of relevant regulations. A deployment of the armed forces requires a governmental decision, however not a participation of the parliament. Principal mission in wartime is the armed defence of Lithuania.254 According to the goals listed in the Lithuanian Military Strategy, existing capabilities will either

248 See Section 3, Article 11.4 of the Law No. VIII-723 on the Organisation of the National Defence System and Military Service of May 5th 1998, subsequently amended. 249 Article 139 of the Constitution. 250 Article 84.14 of the Constitution. 251 Article 137 of the Constitution. 252 Article 142 of the Constitution. 253 Law No. VIII-723 on the Organisation of the National Defence System and Military Service, May 5th, 1998 as amended by January 14th 1999, No. VIII-1027, and July 7th 1999, No. VIII-1289, see http://www3.lrs.lt/cgi-bin/preps2?Condition1¼90344&Condition2, visited May 22nd, 2010. 254 Article 12 of the Law of the Republic of Lithuania on the Organisation of the National Defence System and Military Service, No. VIII-723 as of January 14th 1999.

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be preserved or created to use the armed forces for national needs. Activities will comprise counter-terrorist operations within Lithuania on squadron level.255 Lithuania cooperates with Estonia and Latvia in BALTBAT (joint infantry battalion) and BALTRON (joint naval squadron), both available for peacekeeping operations.

bbb)

Police

Constitutional provisions do not define the preferential sphere of action of the police. Fundamental tasks of the Lithuanian Public Police are the protection of all persons who are in the territory of Lithuania, human rights and liberties, the assurance of public order and security of society, rendering prompt assistance to individuals, prevention from criminal activities and other violations of law as well as supervision of secure traffic. These tasks are laid down in the Law on the Police and in the Law on Police Activities.256 According to the regulations, the institution National Police comprises the bodies Criminal Police, Traffic Police, and Public Police.257 Mission of the Public Police is to ensure public order during national events, render necessary assistance to the prosecutor’s office, investigative bodies and courts in the investigation of crimes, and to guard State institutions and other vital facilities.258 Mission of the transport police is to perform the duties of the criminal and public police within railway, airline and water borne systems of transport. Road safety control, the investigation of traffic violations and road accidents are exercised by the traffic police. Beside these police bodies, a Municipal Police has been established to ensure the protection of public order and peace by preventing violations of law and order.259 The Lithuanian Police Forces participated in several civil crisis management operations, including peacekeeping and observer missions mandated by the UN, OSCE, WEU and the EU.260 Beyond these measures, the Lithuanian Government established a crisis management centre under the ministry of national defence to monitor and analyse risk factors and to coordinate relevant activities of state authorities.261

255

Guidelines of the Lithuanian Minister of National Defence 2006–2011. See Articles 4, 5 and 18 et seq. of the Law on the Police, I-851 of December 11th 1990 and Article 5 of the Law on Police Activities as amended May 11th 2006. 257 See Article 13 of the Law on the Police. 258 See Article 14 of the Law on the Police. 259 See Article 15 et seq. of the Law on the Police. 260 See review of participation of Lithuanian Police Forces in crisis management operations, http:// www.policija.lt/index.php?id¼3329, visited May 22nd 2010. 261 Resolution No. 939 as of July 27th 2001 of the Government of the Republic of Lithuania. 256

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A severe overlapping of competences has apparently not been reported, apart from some minor disagreements on some occasions concerning the use of roads, land and forests during military exercises. ccc)

Other Security Services

Beside the armed forces and the police forces, various other security forces contribute to the safety and security of Lithuania. Among those are the Border Police, the Fire Department, Financial Crime Investigation Service, VIP Security Department and Public Order Police Unit. For each of these authorities, individual laws and regulations have been adopted. Since the armed forces are neither assigned the mission of countering the raise of riots nor equipped to perform CRC operations, the Ministry of Interior has at its disposal the specialised Public Order Police Unit for this purpose. The assigned mission of the Lithuanian Border Guard is to guard the land and sea borders and maintain their inviolableness.262 The Border Guard units perform and ensure border checks of persons crossing the Lithuanian borders, ensuring a safe and swift border traffic, supervising and applying legal procedures to foreigners residing in or illegally living in Lithuania.263 In addition, the State Border Guard Service of Lithuania is assigned the task of protecting the Ignalia Nuclear Power Plant.264 Though the State Border Guard is subordinated to the Ministry of Interior, the Border Guard defends the state as an integral Part of the military forces during wartime.265 ddd)

Cooperation

The scope of assistance to civil authorities is relatively restricted, limited by virtue of Article 18. According to its wording, the President or the Minister of National Defence may issue an order to deploy the National Armed Forces in the event of natural disasters, industrial accidents and calamities within Lithuanian territory to assist civil authorities.266 Both may also “send military rescue teams to disaster stricken foreign countries at their government’s request or with the government’s consent” and order the armed forces to assist the Border Police if necessary to 262

Legal basis for the assignment of tasks is the Law on the State Border Guard Service, Chapter I Section II Article 5 et seq. as of October 10th 2000, No. VIII-1996. 263 See “Tasks and Functions of the SGBS”, http://www.pasienis.lt/index.php?1644483076, visited May 22nd 2010. 264 Chapter II of the Lithuanian Law on the Basics of National Security as amended May 26th 2005, No. X-226. 265 See Chapter I Section I Article 2, Section 2 Article 5 and Section III Article 12 of the Law on State Border Guard Service, as of October 10th 2000, No. VIII-1996. 266 Article 18 (1) of the Law on the Organisation of the National Defence System and Military Service.

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re-enforce border security.267 In case the Minister of National Defence issues the order to deploy the armed forces, he is required to inform the President of the Republic. A deployment of armed forces within Lithuanian territory requires extraordinary circumstances, such as violent anti-constitutional activities. Such a deployment requires the President to issue a decree upon which the armed forces may be deployed.268 Other extraordinary cases, such as the endangerment of human life and property by criminals may also allow for a deployment of armed forces. However, this requires a written request of the General Commissioner of the Police Department under the Ministry of Internal Affairs, the Deputy Commissioner, or a local Police Chief. The military unit deployed on orders of a commander in the operational chain of command will then provide specifically defined one-time assistance to the police that may not exceed 24 h. Accountable for the operation is the General Commissioner of the Police Department, the Deputy Commissioner or an official assigned by the General Commissioner. In compliance with these procedures, the military assistance may be extended to 48 h.269 The far-reaching deployment of armed forces to assist civil authorities for a certain period of time during unusual circumstances requires a governmental resolution. In other words, the basic distinction is that the armed forces may not be engaged in civil matters without prior imposition by Parliament or President, except for the foregoing examples.

pp) aaa)

Luxembourg Armed Forces

Unlike in bygone days, Luxembourg today holds well-established armed forces. In defiance of its rather small size, the status of the forces is well recognised among the own population as well as on international level. Due to historical circumstances that led to Luxembourg’s neutrality, the Grand Duchy has not been intensively influenced regarding the development of armed forces. In the aftermath of WWII, Luxembourg was forced to recognize, that neutrality was not sufficient a protection from any involvement in armed conflict. When it comes to defining the mission of the armed forces, the relevant provision is contained in the Law of July 23rd 1952 on Military Organisation. References to the Armed Forces of the Luxembourgian Constitution are confined to the provision “Tout ce qui concerne la force arme´e est regle´ par la loi”.270 In the 267

Article 18 (2) of the Law on the Organisation of the National Defence System and Military Service. 268 Article 18 (4) of the Law on the Organisation of the National Defence System and Military Service. 269 Article 18 (5) of the Law on the Organisation of the National Defence System and Military Service. 270 See Chapter VII, Article 96 of the Constitution.

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receding Cold War scenario, the Luxembourgian Parliament enacted a law to modify the Law of July 23rd 1952, adapting its provisions to new threats and changed strategies for warfare. The modified Law of August 2nd 1997 assigned various missions to the armed forces. As far as operations on the national territory are concerned, the armed forces are to participate in the defence of the territory of Luxembourg during armed conflicts. Beside this primary task that especially comprises the protection of homesteads and urban areas, the armed forces are also engaged in providing assistance to other public authorities and services in cases of major public interest and disasters. At the international level, assigned mission of the Luxembourgian armed forces is to conduce to collective and common defence within the framework of international organisations of which Luxembourg participates as a member. This comprises the performance of its duties and obligations in humanitarian tasks, but also in peacekeeping missions and general tasks of crisis management such as peacemaking as well as the verification of the implementation of international treaties.

bbb)

Police Grand Ducale

Though Luxembourg used to maintain a Gendarmerie Force, this institution lately merged with the standard police forces. The first references to a Mare´chausse´e date back to October 23rd 1732 to fight “vagabonds”.271 Missions of the late police force are stipulated in relevant provisions.272 Today, the Grand Duchy established several police bodies such as the criminal police “Police Judicaire”, traffic police “L’Unite´ Centrale de la Police de la Route” and specialised regional police “Service Re´gional de Polices Spe´ciales”.

qq) aaa)

Malta Armed Forces

The Malta Armed Forces arise from the first official embodiment of Maltese Troops in the British Army in April 1800. Currently, the Malta Armed Forces is a brigade sized military element consisting of one headquarters and three regiments. While the 1st Regiment is established as an Infantry Battalion, the 2nd Regiment consists of a Maritime Squadron, Air Squadron and Air Defence Battery and the 3rd Regiment incorporates Logistic Services. Besides, an Emergency Volunteer Reserve Force has been established to perform civil emergency duties, key point 271

See http://www.police.public.lu/PoliceGrandDucale/Historique/his_gie.html, visited May 22nd 2010. 272 “Loi du 31 mai 1999 – PGD – Me´morial A N 87”, see http://www.police.public.lu/PoliceGrandDucale/mission_organigrame/TextesLoi/memorial_pdf.pdf, visited May 22nd 2010.

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security duties, tactical patrolling and surveillance and operation of a light antiaircraft gun. Primary objectives of the Armed Forces of Malta are to maintain a military organisation capable of defending the island’s integrity in accordance with the defence roles as set by the Government.273 Further missions comprise the fight against terrorism, illicit drug trafficking, the conducting of anti-illegal immigrant and anti-illegal fishing operations, the performing of search and rescue operations and surveillance of sensitive locations.

bbb)

Malta Police Forces

The Malta Police Force was founded on July 12th 1814 and comprises about 1,800 serving members at present. Main objectives of the Malta Police Forces are to preserve public order and peace, to prevent the commission of offences, to promote and enforce the observance of the laws, as a first guarantee of all persons in Malta, to respond immediately to any request for the protection and intervention of the law.274 In order to supervise the transformation of the EU directives and regulations (e.g. the bird protection directive or the flora-fauna-habitat directive), a 23-member Law Enforcement Police has been established. This unit supervises also prostitution and gambling activities.

ccc)

Cooperation

Though a military institution, the armed forces also provide assistance and backup support to the Malta Police Force and other governmental agencies, provided that the situation – a national emergency, a natural disaster, a bomb disposal or threat to internal security – requires such action. Worth remarking is the regulation in the Malta Armed Forces Act stipulating the authority of the President of Malta to empower by order any member of the armed forces to “exercise in addition to any functions, powers and duties he may have as a member of the force, all or any one or more of the functions, powers and duties as are by law vested in a member of the Malta Police Force and in an officer of the Customs”.275 Relevant provisions such as a subsidiary legislation embed this arrangement.276 This leads to a distinct and deliberate blurring of the division between the two spheres of responsibilities.

273

See Part II Title I Articles 3–4 of the Malta Armed Forces Act of September 22nd 1970. Police Act Part II Title I 4. as amended by Act XVI of 2006. 275 Malta Armed Forces Act Part II Title I 4 (3) as amended by Act XV 2002. 276 Subsidiary Legislation 220.06 “Assignment of Powers to Armed Forces of Malta Order” of August 8th 1980, Legal Notice 66 of 1980, as amended by Legal Notices 53 of 1981, 44 of 1983 and 15 of 1984. 274

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Thus, the Malta Armed Forces perform two defensive roles: a primary by defending the integrity and security of the state in both crises and peacetime277 and a secondary by providing military support to other government authorities.278 However, the distinctions and differences between the roles of the two forces can easily be obliterated by a single order of the president without further involvement of other elements such as the Parliament or the Cabinet to avouch for a democratic control of the armed forces. A designated participation of the parliament can neither be inferred from the Malta Armed Forces Act nor from the Constitution.

rr) aaa)

Netherlands Armed Forces

While the Dutch Constitution and its provisions concerning the armed forces can be traced back to the very first constitution of the Kingdom of 1815, for long years the armed forces enjoyed minor respect of the population due to their unpopular means of recruitment. When the abolition of the conscript army was finally concluded in 1996, the decision was welcomed from all sides. From this point on from the latest, the Dutch population showed a continued support for the existence of the armed forces.279 The mission of the armed forces is defined in Article 97 of the Dutch Constitution. In its present form, it is understood as the “maintenance of independence and the defence of the Kingdom”. Despite this interpretation, the official wording of Article 97 comprises explicitly the defence and protection of the “interests” of the Kingdom as well as the promotion of international legal order. Permissible operations are those matching the provision of aforementioned article of the Constitution. Operations rated among these are missions of crisis management abroad, humanitarian aid in general, cooperation with civil or governmental authorities as well as evacuation of national citizens. In addition, the Dutch constitution prescribes a principle of legality: Besides the provision of the Constitution, an exercise of public authority towards the general public requires as basis an Act of Parliament. Thus, most operations of the military need such an Act of Parliament to fulfil their tasks towards the general public. Crucial provision concerning the mission of the armed forces is Article 97 (1) of the Dutch Constitution, assigning the primary mission as to safeguard “the maintenance of independence and the defence of the Kingdom”. As long as this regulation and provisions of public international law are observed, in principle no limitation on the use of armed forces is prescribed by the constitution.

277

See http://www.afm.gov.mt/pgprimary.htm, visited May 22nd 2010. See http://www.afm.gov.mt/pgsecondary.htm, visited May 22nd 2010. 279 Leonard F. M. Besselink “Military Law in the Netherlands” in European Military Law Systems, ed. by Georg Nolte, p. 556. 278

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Royal Constabulary: Koninklijke Marechausse´e

The Koninklijke Marechausse´e or Royal Constabulary is one of four military bodies of the Netherlands. Being a gendarmerie, it is a military body serving peacetime duties of a normal police force. Its history can be traced back to the year 1814 when it was founded by King William I. to replace the French Gendarmerie. At this point, it was a part of the army and therefore tasked with police duties for the army as well as civilian police work as part of the national police. It was Queen Wilhelmina who appointed the guarding of the royal palaces to the marechausse´e before the German occupation government merged the marechausse´e with the rijksveldwacht and the gemeendeveldwacht in 1940. As a consequence, the marechausse´e lost its military status and it was not until after the Second World War that the marechausse´e was divided into the Korps Rijkspolitie and the Koninklijke Marechausse´e, which regained its military status. As late as in 1998, the marechausse´e was made independent of the army. Today, the marechausse´e is a police organisation with a military status and both civil and military tasks. As far as military tasks are concerned, the marechausse´e comes under the jurisdiction of the Ministry of Defence. As to that, military tasks comprise policing duties for the Dutch Armed Forces, for foreign military personnel stationed in the Netherlands and for international military headquarters as well as police duties at sites under the control of the Ministry of Defence. Its civil tasks are carried out under the authority of the Minister of the Interior and Kingdom Relations and comprise guarding the members of the Royal House in close cooperation with the Royal and Diplomatic Protection Service and the KLPD, performing policing and security duties at airports, providing public order and criminal law enforcement assistance in combating cross-border crime, enforcing immigration legislation by means of border control at the external borders of the Schengen area and mobile surveillance within the Netherlands, the performance of other duties such as assistance with the reception of asylum-seekers and the deportation of undesirable aliens and rejected or failed asylum-seekers, the guarding of transports of valuables for the Dutch Central Bank as well as performing policing and security duties at the prime minister’s official residence. In addition, it assists the police, maintains a Special Security Brigade for arrests, observation and protection and deploys armoured vehicles and other equipment for riot control.280 As far as its civil and military law enforcement duties are concerned, the Minister of Justice is in charge of the Royal Constabulary. Though there have been some discussions concerning the legitimacy of international operations such as joint peace-support operations due to the absence of a reference to international operations below the threshold of war, it has been confirmed by the Centraale Raad van Beroep that members of the Royal Constabulary may carry out their tasks in multinational operations.281 The participation in such operations are thus subsumed under the term “interests of the Kingdom” as put 280

http://www.werkenbijdemarechaussee.nl/, visited May 22nd 2010. Decision of September 7th 2000, 98/38 Maw, (2000) TAR, p. 144.

281

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forth by Article 97 of the constitution and the insertion of the reference to the promotion of the “international legal order” in aforementioned article.

ccc)

Police Forces

One of the basic principles of the Dutch Police Forces is to operate at the very heart of the community and as close as possible to general public. A majority of the Dutch police officers are employed in basic units such as neighbourhood teams and conduce directly to the safety and security of the citizens. Basic duties of aforementioned basic unit are performed in shifts and may comprise patrolling either by car, motorcycle, bicycle, foot or even horseback, providing of emergency assistance, recording of offences, communicate with the public, mediating in the event of disputes, carrying put of criminal investigation, prevention of crime, road traffic policing, enforcing of environmental laws, and monitoring the observance of statutes. The maintenance of public order and the control of serious public order offences are assigned missions to mobile units or riot squads. Currently, the Netherlands hold a total of 45 mobile units, each of which composed of about 50 members. Among the most important tasks of the mobile units are the policing of football crowds and the combat of football hooliganism. Complementing regional teams such as arrest teams, police infiltration teams, observation teams, special support teams, and criminal investigation teams add to the versatile responsibilities of the Dutch Police Forces. Another important element of primary policing that requires considerable resources is road traffic policing. The Dutch National Police Services Agency (KLPD) consists of eleven divisions, each assigned a specific area of responsibility. Police services within the KLPD are the Traffic Police, Railway Police, Water Police, Aviation Police, Mounted Police and Police Dogs Services. Any weapons that the police forces are authorised to bear are prescribed by the Minister of Justice and the Minister of the Interior and Kingdom Relations.282 Regulations of how the officers are supposed to perform their mission are defined by virtue of a Police Code of Conduct.

ddd)

Cooperation

Tasks that comprise civilian assistance and support are usually based on the Police Act “Politiewet”283 and the Act on Disaster and Serious Accidents “Wet rampen en zware ongevallen”.284 Relevant incidents have been support operations during 282 Standard-issue weapons of Dutch police officers are a 9 mm service pistol, a short baton, and pepper spray. Additional equipment such as handcuffs and bulletproof vests are increasingly distributed. 283 See Articles 58–60 of the Politiewet. 284 See Article 18 of the Wet rampen en zware ongevallen.

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floods, clearings of storm damages or tasks relating to the explosives ordnance disposal. A clear distinction to tasks of the Royal Constabulary is accordingly hard to draw. Since the Koninklijke Marechausse´e is part of the armed forces and has a number of tasks that are to be classified as semi-civilian such as border control, protection of the Royal Family or the Central Bank, discussions on the issue of an enhanced cooperation between the armed forces and the police have emerged during the last years. Here, too, the regular police forces showed only minor interest and understanding for attempts to extending the military field of duty to civil policing. In case of a State of Emergency, Article 103 of the Dutch Constitution allows for a deployment of the armed forces. The special Emergency Situations Coordination Act does not differentiate between internal and external State of Emergency, however a graduation does exist: the act distinguishes between a limited state of emergency and a general state of emergency. Depending on the particular state of emergency, the power given to the military authorities varies. Two amendments to this Act can be brought into operation by Royal Decree, granting the military farreaching power over civil institutions. This comprises the right to restrict the freedom of movement of persons, the right to evacuate certain areas, the duty to give information, the right to diverge by military ordinance from the regulations of decentralised authorities as well as the right to empower other authorities to exercise some of the exceptional powers attributed to the military authorities.285 The military authorities are furthermore granted the right to deprive person’s liberty, to charge civil authorities to obey military’s instructions286 as well as a general right to limit fundamental rights.287 However, no State of Emergency has ever been declared under Article 103 of the Dutch Constitution.

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Poland Armed Forces

Primary objective of re-defining the missions of the Polish Armed Forces and the Police was to implement the notion of a civilian and democratic control of the armed forces. Accordingly, the Law on the Police was completely revised after the democratic breakthrough of 1989.288 This development and motivation

285 Delegated powers mentioned in the so-called A-list to the Emergency Situations Coordination Act refer to the Articles 9–23 of the Oorlogswet voor Nederland, the War Emergencies Act for the Netherlands. 286 Ministers, members of the judiciary as well as the Council of State, General Chamber of Audit, National Ombudsman and Permanent Advisory Bodies are not subjected to these restrictions in rights, see Chapter 4 of the Constitution. 287 The B-list to the Act comprises the powers referred to in Articles 9–53 of the Oorlogswet. 288 The Law on the Police was adopted by the Sejm and the Senate in April 1990.

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is also reflected by the substantial and frequently amendment of the Law on the Universal Duty to Defend the Republic of Poland.289 The armed forces in Poland consist of various operational and territorial defence units, formed in the two military districts of Pomeranian and Silesian. A principal responsibility of the operational troops is defined in Article 26 (1) of the Polish Constitution. Under the terms of this provision “the Armed Forces of the Republic of Poland shall safeguard the independence and territorial integrity of the State, and shall ensure the security and inviolability of its borders”. Though these missions seem to be exclusively defensive, they have to be interpreted with Article 5 of the Constitution. Thus, the mission becomes extended to domestic matters and national security. The Polish Constitutional Court additionally backs this interpretation, conceding the mission of safeguarding internal security to the armed forces and acknowledging the importance of the armed forces role concerning this matter while reaffirming the defence of the independence and safety as the main mission.290 In contrast to other European states, the defence of democracy or democratic values are not explicitly mentioned in the Polish Constitution. However, Article 26 (2) of the Constitution stipulates that “the Armed Forces shall observe neutrality regarding political matters and shall be subject to civil and democratic control”.291 And since Article 2 of the Constitution constitutes Poland to be a democratic state governed by the rule of law, the Polish armed forces seem at least implicitly obligated to defend democracy as a basic value. Concrete tasks and responsibilities as well as aims of the military are furthermore formulated in the Statute on the Universal Duty to Defend the Republic of Poland of November 21st 1967. Polish Armed Forces can also be deployed abroad. Relevant provision is the Statute on Rules concerning the Deployment and Stationing of the Polish Armed Forces Abroad.292 Article 2 (1) of the Statute defines the scope of operations in which Poland can participate with its armed forces. These tasks include participation in armed conflicts or the support of allied forces,293 peace operations294 as well as missions against terrorist attacks or their effects.295 The explicit naming of terrorist attacks is quite unique compared to longstanding EU member states where the effects of a terrorist attack is often covered by a provision concerning a state of emergency. Yet it is typical for nations, which acceded in times of an increased public attention towards terrorism. As far as peace support operations are 289

Law of November 21st 1967 on the Universal Duty to Defend the Republic of Poland, consolidated text in the Journal of Laws of 2004 no. 241 item 2416, subsequently amended, also referred to as the 1967 Defence Act. 290 Judgement No. K 26/98 of the Polish Constitutional Court of March 7th 2000. 291 Unofficial translation by the author. 292 The Statute Concerning the Rules on the Deployment and Stationing of Polish Armed Forces Abroad dates of December 17th 1998, see Journal of Laws 1998, No. 162, item 1117. 293 See Article 2 (1) (a) of the Statute. 294 See Article 2 (1) (b) of the Statute. 295 See Article 2 (1) (c) of the Statute.

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concerned, the Polish Armed Forces participated in a number of missions with a total of 3,800 soldiers currently deployed abroad.296 By virtue of Article 2 (2) of the Statute, the stationing of Polish Armed Forces abroad is defined as their presence abroad with the intention to take part in military training or manoeuvres,297 SAR operations, and humanitarian missions,298 as well as in representative events.299 The troops deployed are trained to their needs to provide adequate performance also in CRC issues to ensure security and inviolability of their bases and within their AoR. The principle responsibilities of the operational troops are to conduct defensive and offensive operations during wartime while performing peacekeeping and humanitarian operations during peacetime. Regarding joint operations with armed forces of other countries, no specific constitutional limitation exists.

bbb)

Police Forces

The mission of the Polish Police Forces is not defined by virtue of the Constitution but by statute. According to this Law, the police are defined as a uniformed and armed force established to ensure the security of the population and to maintain law and public order. The essential and permanent objectives to be pursued by the police comprise the protection of people’s life and health as well as their properties against any unlawful acts, the protection of security and public order especially within public places, the supervision of public transport and road traffic, the prevention and countering of crimes, the overseeing of local and municipal police forces as well as private security agencies and the cooperation with foreign police forces and international organisations.300 Chapter 10a of the Law on the Police specifies the rules of establishing and deploying contingents of police officers in foreign assignments. Thus, police contingents may inter alia contribute to peacekeeping missions, operations aiming to prevent terrorist acts or results thereof, humanitarian and SAR operations as well as to police training and exercise. In respect thereof, the decision to establish or to disband such contingencies requires the resolution of the Council of Ministers, the order of the Minister of the Interior or the decision of the Chief of Police. In addition, the decision for deployment requires specifications in regard to its individual mission, system of

296 Among these operations are deployments in Iraq (Operation Iraqi Freedom), Kosovo (PMU/ KFOR), Lebanon (PMC/UNIFIL), Golan Heights (PMC/UNDOF), Balkans (PMU/SFOR), and Albania (PMU/AFOR). 297 See Article 2 (2) (a) of the Statute. 298 See Article 2 (2) (b) of the Statute. 299 See Article 2 (2) (c) of the Statute. 300 Article 1 of the Law on the Police of April 6th 1990.

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command and entity to which the contingent will be subordinate to during the mission.

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Other Security Forces

Among the security forces of the Republic of Poland are apart from Armed Forces and Police Forces the Border Guards,301 the State Fire Service,302 the Railway Protection Guards,303 the Military Police304 and the Road Transport Inspectorate.305 Both the Border Guards of Poland as well as the State Fire Service come under the authority of the Minister of the Interior and Administration while the Railway Protection Guards and the Road Transport Inspectorate are subjected to the Minister for Transport and Building.

ddd)

Cooperation

Main uncertainty in regard to a legal framework that limits permissible operations has since long been the question of domestic use of the armed forces. As stated beforehand, existing constitutional provisions in Poland are unclear to a high degree. Though the legal situation is said to having improved, a clear regulation of the mission of the armed forces is still missing. The experiences of the military coup of 1981 and the subsequent introduction of martial law had some distinct bearings on the legislation concerning laws on extraordinary measures, making the legislators of the democratic Poland aware of the importance of safeguards in order to prevent the use of military force against citizens. As a result, martial law can today only be introduced in cases of external threats to the State, acts of armed aggression against the territory of Poland or when an obligation of common defence arises by virtue of international agreements.306 Until now, solely the adoption of two Statues provided some clarification to these matters. The first Statute that was adopted recently is the Statute on the State

301

Law of October 12th 1990 on the Border Guards, Journal of Laws of 2005 no. 234 item1997, subsequently amended. 302 Law of August 24th 1991 on Fire Protection, Journal of Laws of 2002 no. 147 item 1229, subsequently amended. 303 Law of March 28th 2003 on the Rail Transport, Journal of Laws of 2003 no. 86 item 789, subsequently amended. 304 Law of August 24th 2001 on the Military Police, Journal of Laws of 2001 no. 123 item 1353, subsequently amended. 305 Law of September 6th 2001 on the Road Transport, Journal of Laws of 2004 no. 204 item 2088, subsequently amended. 306 See Chapter XI, Articles 228–234 of the Polish Constitution and the Law on Martial Law and the Powers of the Commander-in-Chief of August 29th 2002, Journal of the Laws of September 25th 2002 no. 156 item 1301, subsequently amended.

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of Natural Disaster,307 while the second is the likewise adopted Statute on the State of Emergency.308 Most important, both Statutes include specific rules concerning a domestic use of the armed forces. A state of emergency may be declared in case of threats to the constitutional order of the state, the security of its citizens or to public order.309 However, it is subject to a time limit of ninety days and requires the consent of the Sejm for a one-time extension. In addition, the legislative authorities such as the Sejm and the Senate may not be disbanded and elections may not be held during the period of extraordinary measures. Likewise, amendments to the Constitution, acts or elections to the Sejm, the Senate, local governments or the presidency as well as the statutes on extraordinary measures may not be issued during this period. Relatively precise is the provision of Article 3 (1) (a) of the Defence Act that explicitly assigns a participation in the fight against natural disasters or extraordinary threats to the environment just as in search and rescue missions to the armed forces.310 In contrast to this provision, the Law on the State of Natural Disasters does not mention the armed forces as responsible participants in the fight against environmental disasters. Nonetheless, armed forces may be employed during a state of natural disaster in case other forces and measures prove ineffective or insufficient.311 In this particular case, the Minister of Defence may place parts of the armed forces at the disposal of the local representative of the government.312 Though these units exercise the tasks appointed by the local representative, they do not come under his full command but remain under the ultimate command of the armed forces. Concerning missions to maintain public security and other domestic matters, the Statute on the Police regulates the use of the armed forces to a large extend.313 Article 18 (3) of the Statute on the Police intends for an employment of armed forces in case the armed units of the regular police forces prove insufficient. This requires however a decision of the President at the request of the Prime Minister. Exemplary tasks assigned to the armed forces in such a case are the protection of certain buildings, the protection and isolation of buildings, roads, streets, or certain

307

Referred to as the SND Statute of April 19th 2002, see Journal of Laws 2002, No. 62, item 558. Referred to as the SE Statute of June 21st 2002, see Journal of Laws 2002, No. 113, item 985. 309 See Article 11 of the Law on a State of Emergency of June 1st 2002, Journals of Laws of July 20th 2002 no. 113 item 985, subsequently amended. 310 Order of the Council of Ministers of February 20th 2006 on the detailed rules of participation of the units of the armed forces of the Republic of Poland in preventing or removing the results of a natural disaster, Journal of Laws of March 10th 2003 no. 41 item 347. 311 See Article 18 of the Law on a State of Natural Disaster, Journal of Laws of May 22nd 2002 no. 62 item 558. 312 This local representative is referred to as the Voivode (Wojowoda), from one of Poland’s sixteen Voivodeships (Wojewo´dztwo), see Michal Kowalski, “Military Law in the Republic of Poland”, in European Military Law Systems, ed. by G. Nolte, pp 656 et seqq. 313 This Statute on the Police dates of April 6th 1990, see Journal of Laws 1990, No. 30, item 179. 308

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parts of towns as well as the support of police forces in restoring security and public order.314 The Prime Minister has furthermore the competence to determine a deployment of the Military Police at the request of the Minister of Interior and in agreement with the Minister of Defence in case of a natural disaster or extraordinary threats to the environment, subjected to the provision that the police forces are unable to effectively perform their mission.315 But also a State of Emergency may be reason for a domestic deployment of armed forces. However, such a deployment is subject to the condition formulated in Article 11 (1) of the Statute on the State of Emergency that this deployment is only executed to restore the normal functioning of the state and as ultima ratio, i.e. if all other forces used and measures taken have proven their inadequacy or insufficiency. This precondition is further specified so that the deployment must not endanger the capability of the armed forces to fulfil their constitutional obligations as well as obligations deriving from ratified international agreements. As these regulations show, the role of the armed forces in domestic matters such as assuring the state’s internal security is rather an auxiliary one. The President at the request of the Prime Minister takes the final decision on the employment of the armed forces, while the forces deployed remain under the auspices of the service and exercise tasks defined by the Minister of Defence and the Minister of Interior. In accordance with Article 11 (4) of the Statute on State of Emergency, the Council of Ministers determines the specific conditions of employment, taking extent and nature of the situation into account. As provided for in Article 15–17 of the Statute on the Police and Article 11 (3) of the Statute on the State of Emergency, soldiers of the units deployed are appointed the same authority and competencies as policemen, presumed these competencies are necessary for their tasks. However, units of the armed forces delegated to provide assistance remain within the structure and the chain of command of the armed forces. In such as situation, joint actions of the police and the armed forces are coordinated by a Regional Chief of Police or by the Chief of Police. In either case, the civilian coordinating authority determines the exclusive areas of activity for the armed forces deployed. In turn, the commander of the armed forces is obliged to agree with the civil coordinating authority a defined mode of collaboration. Such collaboration by armed units of the police and supporting units of the armed forces are admissive in the case of a threat to public security or public order, requiring in particular a general danger to life, health or liberty of citizens, an imminent threat to property, buildings or installations of particular significance to state defence and security or a terrorist attack endangering human life. Given this 314 These tasks are exemplarily stated in section 8 (1)–(2) of the Regulation of the Council of Ministers Determining the Rules of the Use of the Police and the Armed Forces Units and SubUnits in Case of a Threat to Security or Dangerous Violation of Public Order of March 5th 1991, see Journal of Laws 1991, No. 26, item 104. 315 This competence of the Prime Minister is based on Article 18a (1) of the Statute on the Police, supra.

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apparently more extensive conception, especially of a terrorist attack, the final decision in urgent cases on the assistance of armed forces to the police may be taken by the Minister of Defence on the motion of the Minister of the Interior. Both the President of the Republic and the Prime Minister must be immediately notified and are likewise immediately required to approve or revoke the decision of the Ministry of Defence. Legal framework for such cooperation of armed forces and police forces within the national territory is provided by an Order of the Council of Ministers.316 A regulation concerning cooperation of armed forces and the police on foreign assignments does however not exist. At present, legislative efforts are underway to review aspects of coordination, cooperation and the exchange of information between the security forces, aiming to enhance operational readiness when providing mutual assistance. Therefore, the review in question comprises a draft bill on crisis management, a draft bill to replace the Railway Protection Guards with the Railway Guards, and an amendment of the Border Guards Law. Latter aims to extend the duties of the Border Guards connected with ensuring public security and order, to enhance capabilities to fight illegal migration and human trafficking, to extend their powers to perform proceedings and operations in order to fight bribery and corruption and to increase on-board passenger safety by introducing air marshals.

tt) aaa)

Portugal Armed Forces

Speaking of the nineteenth century, the role of the military in Portuguese national political life can be adequately considered as a prominent one. Though the army was divided in its ideology, this did not hinder it’s acting as a liberal influence on the various political parties aspiring to seize power. Like in other European nations, the beginning of the twentieth century was marked by revolutionary events, putting previous political systems into question. In contrast to developments in other countries, the army remained on the sidelines of the conflict, holding the neutral position of neither backing the monarchy nor republican politicians. Due to a strong sympathy within the junior officers and sergeants, the loyalist units were of only marginal help to the harried monarchy. Later, during the period known as the First Republic, which was of a highly unstable quality, the power-hungry military command commonly dominated the political landscape.317 Due to this engagement in domestic political disputes, the army itself became severely fractionalised, adding further unstableness to the already weak governments. Exemplary is the coup d’e´tat of junior officers from May 28th 1926, united merely in their shared 316

Order of the Council of the Ministers of July 19th 2005, Journal of Laws of July 22nd no. 135 item 1134. 317 The period referred to as First Republic spans the timeframe of 1910–1926.

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scorn for civilian politicians and the governments inability to deal with their discontent concerning service pay, equipment, discipline as well as professional status. This coup ended the First Republic. Still, political unrest continued unabated under the leadership of Anto´nio de Oliveira Salazar in the Second Republic. It was not before the Carnation Revolution of 1974 that put an end to the Estado Novo and installed the Third Republic. Today, the Portuguese Armed Forces (“Forcas Armadas Portuguesas”) consist of the three typical branches of military services Army, Navy and Air Force. Beside the 1st World War, it encountered major intervention in the colonial war in Africa. Since then, the Portuguese military has been involved in various peacekeeping missions abroad.318 According to Article 9.3 of the Law 29/82 of December 11th 1982, the Armed Forces are responsible for the military defence of the Republic by assuring the execution of the military component of the national defence. According to Article 1 of the Law 29/82, principal objectives of national defence are to guarantee the national independence, the integrity of the national territory and the freedom and security of the people against external attack, aggression or threat. Though the original version of the 1979 Constitution adopted a rather broad view of the overall mission of the Armed Forces, an alternative viewpoint was adopted in the run of events. The original version assigned not only the military component of the defence task to the military, but also duties relating to the guarantee of internal order as a mission of a markedly political nature. The general perception that led to this broad view of the responsibilities of the armed forces was the respectively broad notion of the overall concept of national defence. In fact, this broad notion of the concept of national defence did to some extend overlap with the concept of national security. Thus, the Constitutional Law 1/82 of September 30th 1982 took a narrower and more limited view of the mission of the military by simultaneously adopting a rather restrictive conception of national defence, leading in turn to a clarification of the police-military relation. Since then, the concurrent wording of the 1982 Constitution comprises the guarantee of the national independence, the integrity of the national territory and the freedom and security of the people against external aggression or threat.319 Thus, the constitutional wording followed a more restrictive reading of the notion “national defence” and exclusively assigned external missions to the military. This restrictive interpretation resulted from the central concern of separating national defence from internal security and the underlying principle to subordinate armed forces to political authorities as a maxim of modern democracy which implied a redefinition of the constitutional model of the Portuguese Armed Forces. Alongside these changes, the 1982 Constitution introduced other areas of activity such as the possibility of being deployed in extraordinary and exceptional situations of public need, state of siege or

318

Such as INTERFER, UNTAET, MINURSO, EUFOR, KFOR. Article 273.2 of the 1982 Constitution.

319

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emergency.320 Similar to existing regulations in Germany, the scope of intervention being restricted to military defence was therewith explicitly widened to allow for a deployment of armed forces for internal security missions during exceptional situations. It follows that by classing states of emergencies and states of siege with “traditional” cases of national defence, the law recognised the vital importance of public order, natural disasters, and other cases normally falling within the scope of responsibility of civil security forces and the need to apply military resources. Thus, armed forces are both eligible and obligated to contribute to their mission “national defence” but also to go a long way towards effective assistance during extraordinary situations such as a state of siege or a state of emergency. However, Constitutional Law 1/82 added several social duties and responsibilities in the public interest to the armed forces, allowing for a contribution to “civil protection missions, tasks concerning the satisfaction of basic needs and the improvement of people’s quality of life, and technical and military actions under the aegis of the national cooperation policy”.321 Though Article 1 of the Basic Civil Defence Law declares that “civil defence is the activity carried on by the State and the citizens in order to prevent collective risks deriving from serious accidents, disasters and calamities, of natural or technological cause and to minimise their effects and rescue persons in danger when such situation occur”, the same provision holds that “civil protection duties in the field of warning, alerts, intervention, aid and rescue, shall be performed by the following, in accordance with their specific powers and responsibilities: (. . .) c) the Armed Forces”.322 As to that, a Regulatory Decree was issued, aiming at a regulation of “the exercise of civil defence duties by the Armed Forces, in keeping with their mission to collaborate on tasks relating to the satisfaction of basic needs and the improvement of people’s quality of life, defining the terms on which they shall be deployed in the event of a serious accident, disaster or calamity, without prejudice to the legal provisions on states of siege and states of emergency”.323 In effect, the Portuguese Constitution permits the armed forces to be employed for military defence of the nation and accessory functions as the one primary and central mission. Among functions that may be described as accessory are those relating to civil defence and others contributing to welfare and social tasks. With reference to the new paradigm of threats to the security of states following 9/11, Article 273.2 of the Portuguese Constitution is not only referring to “traditional” military threats and external aggressions but also to courses of action followed within a state, but whose cause and origin lie outside of it. In the words of an opinion from the Advisory Board to the Attorney General’s Office, Portugal felt the need to adjust the use of its armed forces to “missions to prevent collective

320

Regulations concerning a deployment of Portuguese Armed Forces during emergency situations are stipulated in Law 44/86 of September 30th 1986. 321 Article 275.6 of the Constitution. 322 Articles 1 and 18.1 of the Basic Civil Defence Law, Law 113/91 of August 29th 1991. 323 Article 1 of the Regulatory Decree 18/93 of June 28th 1993.

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risks and to support or reinforce security measures at the locations of major facilities for sectors essential to the life of the nation”.324 While this opinion is clear about the powers and duties assigned to the armed forces in their mission of military defence of the Republic325 to ensure “national independence” and the “freedom and security of the people against any external threat”,326 it is highly objective as to the need of the armed forces to being both involved in the external component of military defence as well as in an internal component in respect of the new external threats to interests vital to the well-being and security of the population such as food and power supply, transport and communications. In contrast to other countries, the Portuguese legislation does not assign the armed forces any responsibilities in keeping or restoring public order. Accordingly, the armed forces are neither trained nor equipped for operations of a CRC nature. The Portuguese Armed Forces are answerable to the President of the Republic who is the Supreme Commander of the Armed Forces and chairs the Supreme National Defence Council, to the Assembly of the Republic as the principal forum for debate on major issues of national defence, and – through the Minister of Defence – to the Government, as the authority responsible for national defence policy and the administration of the armed forces. bbb)

National Republican Guard

Beside the standard armed forces, Portugal holds a National Republican Guard (NRG),327 technically a military branch, but functionally a police force.328 As a descendant of the Royal Guard of the Police of Lisbon, it was formed in 1911 as a heavily armed paramilitary constabulary organised up to battalion strength.329 Intended as a check against the military, it was first employed to confront monarchist-inspired revolts within the ranks of the armed forces. Though its essential mission was to maintain order in the countryside, the National Republican Guard’s activities were subsequently extended to those of supporting the urban police controlling demonstrations and quelling labour unrest. In the year 1990, the National Republican Guard numbered approx. 19,000 men. Equipped with commando armoured cars and Alouette II helicopters, the Guard was organised into battalions stationed in the major cities, companies and sections in district capitals and smaller communities. Highway patrols were conducted by a 324 Opinion No. P001472001, dated July 2001 in response to questions raised by the Ministry of Defence concerning the sustainability and compliance of missions of this type with the legal framework currently in force. 325 Article 275.1 of the Constitution. 326 Article 273.2 of the Constitution. 327 Usually referred to as Guarda Nacional Republican. 328 See http://www.gnr.pt/ for further details concerning the National Republican Guard. 329 After the coup d’e´tat of 1910 and the substitution of the constitutional monarchy by the republic, the Municipal Guard became altered into the new Republican National Guard by decree of May 3rd 1911.

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separate Traffic Brigade and by rural units of the National Republican Guard. In 1993, the NRG absorbed the yet independent Fiscal Guard,330 which became the Fiscal Brigade of the NRG. As a security force, the NRG consists of military personnel, organised in a special body of troops. During peacetime, the NRG is subordinate to the Ministry of Internal Administration regarding matters of recruitment, conscription, administration, discipline and the execution of the decurrent service of its general mission, and to the Ministry of Defence regarding matters of standardised military doctrine, armament and equipment, whereas during times of war or a national crisis, the NRG may be placed under the operational command of the Head of the States General of the Armed Forces and thus the Ministry of Defence.331 Unlike the officers of the standard police force, the soldiers are subject to military law and organisation. Today, the general mission of the NRG is – without prejudice to the powers assigned by law to other organisations – defined in Article 2 of Decree-Law 231/ 93.332 Within its field of responsibility are the duties to maintain public order, to guarantee the exercise of rights, freedoms and guarantees, to maintain and reestablish the security of citizens and public, private and cooperative property, to prevent or repress unlawful acts committed against the same, to assist the judicial authorities, performing the tasks requested for them as the criminal police body, to enforce the law and legal rules in general, namely those relating to overland and road transport, to combat fiscal offences, to collaborate in controlling the entry into and departure from national territory of national and foreign citizens, and to assist and protect citizens and to defend and preserve property in a situation of danger due to human or natural causes.333 Thereby the main mission of the NRG is divided: The NRG is responsible for doing honour guards and changing of the guard ceremonies at public buildings. On a more pragmatic level, the NRG is also responsible for patrolling and law enforcement at the countryside and small towns. Additional assignments arise from various international missions under the aegis of the United Nations. These missions are coordinated with the Portuguese Ministries of Foreign Affairs and Internal Administration and comprise tasks like the restoring of public order, the conducting of patrols, the establishing of checkpoints, the execution of traffic controls and SAR operations, all of which requiring a high level of operational readiness.

330

Usually referred to as Guarda Fiscal. See Article 9 of Decree-Law 231/93 of June 26th 1993. 332 Decree-Law 231/93 of June 26th 1993 as amended by Decree-Law 298/94 of November 24th 1994. 333 Abstract of Article 2 of Decree-Law 231/93 of June 26th 1993 as amended by Decree-Law 298/ 94 of November 24th 1994. 331

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ccc)

Police Forces

Both public standing and reputation of the Portuguese Police Forces have been subjected to distinct change in the course of the last decades. Though the primary duties of the police have long since been the prevention, detection and investigation of crime and the maintenance of public order, their participation under successive governments in suppressing political and labour organisations left quite an impression among the Portuguese population. One major identification mark of the old regime was the authority of the police. In the course of the revolutionary era following 1974, the police became disarmed and reorganised to fit Portugal’s new political environment. Since the armed forces had to take over responsibility for the maintenance of internal security and public order, civil control over the police was established not before 1976. Due to the experience acquired in that times, Article 272 of the Constitution became revised in 1982 in order to emphasize the responsibility of the police to defend the democratic process and to ensure actions within their authority. The basic mission of the police forces is mentioned in the Constitution of the Portuguese Republic. The Constitution contains provisions on the mission assigned, according to which the functions of the police forces “shall be to defend the democratic rule of law and to guarantee citizens´ internal security and rights”.334 A more detailed differentiation is required to being formulated by law.335 Following a definition given by Law 20/87 of June 12th 1987, internal security comprise activities of the state aimed at guaranteeing public order, security and peace, providing protection to people and property, preventing criminality and contributing to the maintenance of a normal operation of the institutions of the state as well as respecting fundamental rights and freedoms of the citizens and democratic legality within the state. Opposite to internal security lies external security, which is also in Portugal identified with issues relating to national defence. In addition to this basic definition established in the Constitution, the Internal Security Law, approved by Law 20/87 and amended by Law 8/91 of April 1st 1991 define in a more detailed manner the mission of the Police Forces: Article 14.2 enumerates various security forces and services exercising “powers and duties relating to internal security”. Among those are the national Republican Guard, the Fiscal Guard, the Public Security Police, the Criminal Police, the Frontiers and Alien Service, the bodies of the maritime and aeronautical authorities and the Security Information Service. The Maritime Police had functions similar to a Coast Guard service while the Judicial Police was subordinate to the Ministry of Justice and cooperated with the court system to investigate crimes relating to subversion and terrorism. Until 1993, the “Guarda Fiscal”, also known as the Fiscal Guard or Treasury Police was maintained as a border control force mostly

334

Title IX, Article 272, Section 1 of the Portuguese Constitution. Title IX, Article 272, Section 2 of the Portuguese Constitution.

335

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charged with customs and tax evasion duties. Since then it became absorbed by the National Republican Guard and integrated into the Fiscal Brigade of the NRG.336 Concurrent to the above-depicted change in perception of the concept of national defence, the concept of national security was likewise altered. The protection of life, the integrity of the people, the guarantee of public peace and the defence of the democratic order are rated essential and permanent objectives of internal security peremptorily constituted in Article 1.3 of the Law 20/87. Article 272 of the 1982 Constitution declared that the duties of the security forces comprised the defence of democratic legality, protection of internal security and the rights of citizens.

1)

Public Security Police

Originating from a paramilitary force under the jurisdiction of the Ministry of Internal Administration whose basic mission was to protect public security and property in urban areas, this urban police force has been under the control of provincial governors until its reorganisation in 1953. Their de facto combat operations in Africa against guerrilla forces and their correspondingly heavy armament underlined the paramilitary character of these units until the latter was turned over to the military and the units became reorganised and retrained in 1975. The Public Safety Police (“Polı´cia de Seguranca Pu´blica”) established several specialised branches, including a specialised traffic service sharing highway patrol duties with the NRG traffic brigade and the Intervention Police with mobile sections to be deployed nationwide. Today, the powers and organisations of the Public Security Police are established in Law 5/99 of January 27th 1999. Among its duties and responsibilities are the promotion of conditions of security under which democratic institutions may function normally, rights and freedoms may be exercised and the fundamental guarantees of citizens be respected, the maintenance of law and order to ensure public peace and security, law enforcement in urban cities, the prevention of crime and other acts in breach of the law and regulations, the prevention of organised crime and terrorism, the guarantee of security of persons and their property, the exercise of powers and duties committed to it by law in connection with criminal proceedings, the maintenance of road safety, the participation in ensuring the security of ports, river banks and maritime coasts as well as railway areas, the provision of assistance to the population and the rescue of accident and disaster victims and the participation in international missions, on terms established by the Government.337 Matters of crowd and riot control fall within the scope of responsibility of the Public Security Police and are not assigned to the armed forces. Within Portuguese national territory, issues concerning such operations are reserved for the Intervention 336

The Fiscal Guard was disestablished by Decree-Law 230/93 of June 26th 1993 and replaced by the Fiscal Brigade, a unit within the National Republican Guard. 337 Abstract of Article 2 of Law 5/99 of January 27th 1999.

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Corps of the Public Security Police. This reserve police unit is directly subordinate to the national director and trained and equipped accordingly. In the light of the relevant legislation, the Intervention Corps are assigned the keeping and restoring of public order, the combating of situations of concerted violence, the maintenance of law and, the fighting of violent and organised crime, and the protection of major facilities order in collaboration with other police forces. The Public Security Police is answerable to the Government through the member responsible for internal administration.338 2)

Criminal Police

On October 20th 1945, the Decree Law No. 35.042 established the Portuguese Polı´cia Judicia´ria. Its origin lies in Polı´cia Cı´vica, the Civic Police, founded by the Portuguese King Luı´s on July 2nd 1867. Being restructured during the time of Sido´nio Pais, the Criminal Investigation Police was set up. In 1922, Minister of Internal Affairs Anto´nio Jose´ de Almeida enacted an Act, forming the PSP (Polı´cia de Seguranca Pu´blica) as well as the Investigation Police Service, the Administrative Police Service and the Prevention Police Service. By Decree No. 657 of December 5th 1927, the Investigation Police Service became accountable to the Minister of Justice and Religious Services. Today, the Criminal Police is a high-ranking criminal police corps assisting in the administration of justice, assisting the judicial authorities and preventing and investigating crimes. The Criminal Police are hierarchically answerable to the Minister of Justice.339 3)

Other Civil Security Forces

Among other security forces, the Aliens and Frontiers Service “Servico de Estrangeiros e Fronteiras” should be mentioned, alongside with the Security Information Service “Servico de Informacoes de Seguranca”. While the former service operates within the internal security policy with the primary objective of controlling the passage of persons through frontiers,340 the latter service is responsible for gathering, processing and disseminating information in the field of sabotage, terrorism, espionage and all other acts capable of undermining the democratic rule of law.341 By virtue of Law 140/99, a formation of Municipal Police Forces by resolution of the Municipal Assembly on the basis of a proposal from the Municipal Council was made possible.342 These Municipal Police Forces are specially prepared for 338

See Article 1.2 of Law 5/99 of January 27th 1999, PSP Organisational and Procedural Law. See Article 1 of Decree-Law 275-A/2000 of November 9th 2000. 340 Organisational Law approved by Decree-Law 252/2000 of October 16th 2000. 341 Organisational Law approved by Decree-Law 225/85 of July 4th 1985. 342 Law 140/99 of August 28th 1999. 339

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administrative policing, authorised to deal with security issues arising from the numerous areas of municipal activities, such as housing, construction, retail, public health, investigations and notifications and traffic control. ddd)

Cooperation

Though the exclusive domain of the armed forces is the military component of national defence, all security forces and services pool their strength in implementing the national defence policy. Especially through the sharing of information the security forces collaborate, each within their scope of responsibility as limited by relevant organisational rules and regulations.343 Thus, the duties and responsibilities of the Public Security Police under normal institutional arrangements comprise those deriving from the internal security legislation, while the duties of the Public Security Police during exceptional situations derive from legislation on national defence and on state of siege and emergency.344

uu) aaa)

Romania Armed Forces

The Romanian Armed Forces currently consist of 90,000 men and women. According to Art. 118 (1) of the Romanian Constitution, the main mission of the military is to guarantee the sovereignty, independence and unity of the state, the country’s territorial integrity, and the constitutional democracy. This constitutional provision also regards the participation in peace keeping and peace restoring missions as well as contribution to collective defence in military alliance systems as main missions of the armed forces of Romania. To achieve its fundamental objective, the Military Strategy defines several national military objectives such as conflict prevention and crisis management, support of public authorities in civilian emergencies and by humanitarian actions, prevention and deterrence of any possible armed aggression against Romania, participation in conflict prevention, crisis management and collective defence as well as the integration into NATO military structures.345 Its strategic missions can be roughly grouped into peacetime missions, missions in crisis situations and missions at war. During peacetime, the Romanian Armed Forces provide a credible defensive capability based upon organisation, procurement, training and cooperation. Its main strategic missions during peacetime are the above-mentioned prevention of conflicts or participation in conflict prevention and aggression, the 343 Article 6 of the Internal Security Law, Law 20/87 of June 12th 1987 amended by Law 8/91 of April 1st 1991. 344 Article 2.1 of Law 5/99 of January 27th 1999, Law on the Organisation and Procedures of the Public Security Police. 345 See http://english.mapn.ro/milstrategy/natmilitobjectives.php, visited May 22nd 2010.

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preparation of the population, economy and territory for defence and national support for multinational operations, the achievement of the military component of the Membership Action Plan to achieve interoperability and standardisation, the cooperation for training within the framework of Partnership for Peace and according to agreements concluded with other states as well as the participation in peace support and humanitarian missions and the support of public authorities in a civilian emergency or natural disaster.346 During such civilian emergency, the armed forces will provide support at the request of the central and local authorities. bbb)

Gendarmerie

The Gendarmerie of Romania, known as the Jandarmeria Romaˆna˘ is the military branch of the national police forces and has its roots in the rural gendarmerie that was established in 1893 as a military corps.347 As well as the civil police force, the gendarmerie is subordinated to the Ministry of Interior and Administrative Reform, which makes this institution a military body under a civil command. The close affinity of the gendarmerie to the military manifested in a law of 1908 that reorganised the gendarmerie and rendered it a component of the army as well as transferred personnel from the army to the gendarmerie. The gendarmerie became engaged in both world wars and had to submit to several changes in organisation. Since 2007, the Romanian Gendarmerie is operating as a professional military force and is a full member of the FIEP.348 Main tasks of the gendarmerie are the maintenance and restoration of public order, CRC operations as well as safeguarding of vital installations of the state. ccc)

Border Police

Also subordinate to the Ministry of interior and Administrative Reform is the Romanian Border Police. Its main tasks are attributed to the surveillance and control of the crossing of state borders, the prevention and fight against illegal migration and against specific cross border criminality.349 ddd)

Police Forces

The Romanian Police Forces are divided into 41 territorial inspectorates and provide one Police Rapid Intervention Squad each. Corresponding to commissioned ranks of the armed forces, the civil police forces are structured into a police 346

See http://english.mapn.ro/milstrategy/stratmissions.php, visited May 23rd 2010. Visit http://www.jandarmeriaromana.ro/index.htm for more information on the Gendarmerie of Romania, visited May 23rd 2010. 348 Association of the European and Mediterranean Police Forces and Gendarmeries with Military Status, see http://www.fiep-asso.org/, visited May 23rd 2010. 349 See Art. 1 of the Emergency Ordinance No. 104 of June 27th 2001. 347

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officer corps and a police agent corps corresponding to the non-commissioned ranks of a military force. The police forces are responsible for the protection of fundamental rights of the citizens as well as of the private and public property, the prevention and identification of criminal offences as well as the maintenance of public order and safety.350 In the course of the reorganisation of the police, the task of countering organised crime and terrorism by the cyber crime component was added.351

vv) aaa)

Slovakia Armed Forces

The Slovakian Armed Forces have the primary task to guarantee the defence of the Slovak Republic and to provide for the security of state, and to counter external armed attacks by foreign powers.352 Furthermore, their tasks comprise the fulfilment of commitments resulting from international treaties as well as the maintenance of the sovereignty, territorial integrity and inviolability of the borders. The Slovakian Armed Forces participate also in the maintenance of public order and the security of the state. In that way, the armed forces may be used for the protection of the Slovakian state border, the protection and defence of constructions and buildings defined by the government’s decision as facilities of a special importance or important for state defence. The armed forces may also be used for disaster relief in cases of emergency or to cope with extraordinary events. It is also used to fight terrorism, SAR activities but also to ensure air traffic of government officials and to ensure air medical transportation.353 The assignments of the armed forces are also mentioned in further generally binding legal regulations. Among these are the Constitutional Act No. 227/2002 of Coll. on Security of State in Times of War, State of War, Extraordinary Conditions and Emergency State in the wording of the Constitutional Act No. 113/2004 of Coll. Furthermore, Act No. 387/2002 of Coll. on Management of State in Crisis Situations apart from Times of War and State of War in the wording of Act No. 515/ 2003 of Coll. as well as Act No. 414/2002 of Coll. on Economic Mobilisation and on Amendment of the Act of National Council of the Slovak Republic No. 274/ 1993 of Coll. on Specification of Competences of Organs in the Matters of Protection of Consumer, in the wording of later regulations and – finally – Act. No. 110/2004 of Coll. on Operation of Security Board of the Slovak Republic during Times of Peace.

350

See Art. 1 of Law No. 218/2002. See Law No. 508/2004. 352 See http://www.mosr.sk/, visited May 23rd 2010. 353 See the overview at http://www.mosr.sk/index.php?page¼64, visited May 23rd 2010. 351

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Police Forces

The Act of the National Council of the Slovak Republic on the Police Force regulates tasks, organisation and management of the Police Corps.354 Its tasks comprise matters of internal order, security, fight against criminality including organised and international forms and tasks that result from international commitments of the Slovak Republic.355 The National Council of the Slovak Republic and the government of the Slovak Republic control any activity of the Police Corps. In particular, following tasks are fulfilled by the Slovakian police forces: cooperation at the protection of fundamental rights and freedoms, especially at the protection of life, health, personal freedom and safety of persons and at the protection of property. In addition, the police forces are to expose criminal acts and to apprehend their offenders as well as to cooperate at the exposure of tax evasions, illegal financial operations and legalisation of incomes from criminal activity while furthermore performing general criminal expertise. The scope of duty comprises also a leading position in the fight against terrorism and organised crime as an overall assignment.356 Furthermore, the police forces ensure the personal safety of the President of the Slovak Republic, the Chairman of the National Council, the Premier of Government, the Chairman of the Constitutional Court, the Ministry of Interior and further persons stipulated by law or by government. Police forces also ensure the protection of diplomatic missions and further objects determined by law or by government and cooperate at the physical protection of nuclear facilities. Unless otherwise stipulated by a special regulation, it also ensures the protection of state borders. A general assignment mandates the police forces to ensure public order. As an additional characteristic mission, the supervision over safety and smoothness of traffic on roads and the cooperation at its regulation are also assigned to the police forces. Also the search for missing persons and objects is performed by police forces, beside the assistance and protection of endangered witnesses. The police forces fulfil also tasks of state administration and other tasks stipulated by special regulations. ccc)

Cooperation

According to Chapter I, Article 3 of the Act on the Police Force, the police forces perform their duties inter alia in cooperation with public authorities, armed forces, armed security forces and armed security corps. If the forces and means of the Police Corps are not sufficient, the government of the Slovak Republic may detach professional soldiers, soldiers of compulsory military service and members of Corps of Prison and Justice Guard for the time required. Chapter V, Article 70 – designated “Call Up of Soldiers to Perform Tasks 354

Act No. 171/1993 Coll. of July 6th 1993 regarding the Police Force, see http://www.minv.sk/? ministry-of-interior, visited May 23rd 2010. 355 Chapter I Article 1.1 of the Act on the Police Force, supra. 356 Chapter I Article 2.1a-4 of the Act on the Police Force, supra.

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of the Police Force” – stipulates the recourse of the government to “subordinate soldiers in active duty to the command of the police force if resources and means of the police are not sufficient to safeguard the protection of the border, guarded premises or public peace”. Though these recourses are supposed to be of a temporary nature, the wording of the provision confines to the broad formulation “for the time necessary”. Remarkably, this formulation remained unaltered to this respect in later amendments and may be considered as doubtful due to the impact on civilmilitary relations and democratic baselines.357

ww)

Slovenia

aaa)

Armed Forces

The Slovenian Armed Forces were established in 1993 in the wake of the reorganisation of the Territorial Defence Forces of the Republic of Slovenia, a paramilitary organisation of the former Yugoslav Republic of Slovenia. The Slovenian Armed Forces of today are organised as single-branched armed forces with the army as their primary element. Both the naval force and the air force are included as support components to the army and not as independent branches. Since 2003, the Slovenian Armed Forces are organised as a fully professional standing army. The armed forces conduct their activities in accordance with the aims and purposes of the Defence Act adopted by the National Assembly under the rule of Article 124 of the Constitution regarding the form, extent and organisation of the defence of the inviolability and integrity of the national territory. Military defence beyond the discouragement of armed attacks and the defence of the independence, inviolability and integrity of the state comprises military education and training for armed conflicts and other forms of military defence as well as the provision of necessary preparedness as to that, the participation in protection and SAR operations in the event of natural and other disasters and the implementation of obligations assumed by the state within international organisations and treaties. The armed forces may also collaborate with other security forces such as the police forces. Governing regulations in this respect are the third and fourth paragraphs of Article 37 of the Defence Act. Operations based on this provision comprise support activities to the civil protection administration in the event of natural and other disasters. Suchlike operations need the consenting decision of the government. bbb)

Police Forces

By virtue of the Law on Police of 1998, the Slovenian Police Service became an institution within the Ministry of Interior, comprising the General Police Directorate as well as police directorates and police stations. Article II }68a 45. of Act No. 353/1997 Coll. of November 21st 1997.

357

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According to this Police Act, the police forces are assigned – inter alia – the missions of protecting life, personal safety and property of people, preventing, discovering and inspecting penal acts and minor offences, maintaining public order, control and regulation of traffic on public roads, protecting particular individuals, bodies, buildings and districts, protecting particular work premises and classified information of the state bodies, performing state border control and setting forth the aliens legislation.358 The police forces perform its tasks at three levels: the state, the regional and the local level. However, a fourth level may be added since the police forces can be deployed in “non-military tasks” abroad, provided that a request of an international organisation and a decision of the Government upon a proposal of the Minister of Interior are available.359 It follows, that in the light of “non-military tasks abroad” being the operative word, the central concern underlying this specific wording was to ensure the noninvolvement of police forces in military operations. A formulation of this sort is scarcely to find in European legislation governing the scope of responsibilities during foreign assignments of police forces, especially since no such wording is used to govern possible assignment of the police within the national territory. It may therefore be concluded, that the Slovenian Police Act deliberately ruled out such a deployment in order to underline its conception of strictly distinguishing the competences of armed forces and police forces. It seems suggesting that this conception may originate from the historic particularity, that in the year 1991 the TORS fought in a war side by side with the police forces for several days.360C However, several other countries experienced alike situations but failed to develop such a distinct conception of separating their forces in the aftermath.

ccc)

Cooperation

Regarding civil-military cooperation within the national territory, the Act on Police stipulates that police forces “shall cooperate with other bodies, organisations and institutions whose actions are aimed at providing greater security”.361 Article 17 of the Police Act allows for a participation of police forces in a state of emergency or war within its legally defined activities. In other words, the police forces will adapt their organisation and methods to the specific conditions. However, any different deployment of the police forces during a state of emergency or war requires a decision of the National Assembly upon a proposal of the Government. By way of a substitute, a corresponding decision can be taken by the President of the Republic 358

Police Act of the Republic of Slovenia, Chapter II Article 3. Police Act of the Republic of Slovenia, Chapter II Article 19. 360 TORS, Territorial Defence of the Republic Slovenia “Teritorialna obramba Republike Slovenije” formed in 1968 as a paramilitary organisation in the former Yugoslav Republic is deemed to be the predecessor of the current Slovenian Armed Forces. 361 Police Act of the Republic of Slovenia, Chapter II Article 21 and 23 et seq. 359

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upon the proposal of the Government in case the National Assembly is prevented for reasons arising from the state of emergency or war.

xx)

Spain

Particularly with regard to Spain’s history, experiences of the Franco-Era were primum mobile for a specification of tasks and rules of the security forces such as the armed forces, the police forces and the Civil Guard. Today, the armed forces are solely subordinate to the Ministry of Defence while the Civil Guard comes under the command of both the Ministry of Defence and the Ministry of Interior whereas the police forces are exclusively subordinate to the Ministry of Interior.

aaa)

Armed Forces

Relevant regulations concerning the armed forces and their mission are contained in Section 8 of the Spanish Constitution and Sections 2 and 15 of the Organic Act on National Defence.362 Article 8 (1) of the Spanish constitution implies that “the armed forces, composed of the army, the navy and the air force, are assigned the mission to guarantee the sovereignty and independence of Spain, and to defend its territorial integrity and constitutional ordering”. Consequential problems are manifold, e.g. if the armed forces are obliged to intervene in case of imminent danger of separation of the Basque part of Spain or in how far the government holds control over the armed forces when it considers it needful to intervene. It is common consensus that Article 8 requires a strict interpretation in terms of a guarantee against traditional militarism and a statement for democracy. The “guarantee of sovereignty and independence of Spain”, the “defence of territorial integrity” and the “defence of the constitutional ordering” have explicitly been added to the Spanish constitution whereas in marked contrast the mission of the armed forces to defend the “entity und indivisibility of the Spanish nation” has not been explicitly added to Article 8 of the constitution.363 The term “Spain” has to be distinguished from the “Motherland” or “Fatherland” which have been links to undemocratic movements in the past. The term “Spain” is inseparable connected to the characteristics of a democratic state and not a political organisation. On the part of Article 8 in combination with the preamble and Articles 30, 97 and 149 of the constitution, a military policy of expansion is outright out of question. Not precluded however is a possible use of force by means of weapons to maintain the safety of state, just as an explicit tie of the Spanish state to international law is missing. This is generally perceived in a way that any acts by public authorities 362

Organic Act on National Defence 5/2005 of November 17th 2005. Lorenzo Cotino Hueso, “Military Law in Spain”, in European Military Law Systems, ed. by G. Nolte, S. 724 et seq. 363

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possibly endangering international peace are to be considered as unconstitutional. This includes any form of war agitation and war mongering. Therefore, the Spanish constitution is not a “defence-constitution” in a strict sense, since the link to international law is missing. It comprises the defence of various strategic interests that can as well take place outside the Spanish territory. Though the Spanish constitution does not contain express reference to internal use of the armed forces in case of natural or humanitarian catastrophes, a participation of the military in such a scenario is not rejected. According to the general perception of the constitution, civil defence does not originally belong to the scope of responsibility of the armed forces and their armed capacities, it may however be supported by the military by means of material, human resources and logistics.364 As in most European countries and especially following the events of 9/11, it is considered to be increasingly difficult to differentiate between internal and external integrity. The three examples stated in the constitution are merely facets of Spain’s protection as a democratic and constitutional state. The term “ordering” is used to delimit the perception of the term “public order”. Latter has been put forward by Spanish armed forces in times of undemocratic movements. By this, activities are referred to that directly endanger the constitution (“Crimes against the Constitution”), e.g. attempts to countermand, to suspend, to modify totally or partially the Constitution, etc. Furthermore, a mission of the armed forces to safeguard the constitution in cases of extreme dangers derives from an attachment to Article 155 of the Spanish constitution. Important is the distinction of the questions concerning the purpose for which the armed forces shall be deployed and the competence to decide on such a deployment. Regarding the question for legitimacy of a mission of the armed forces in the fight against terrorism, the position of the predominant opinion in the Spanish literature is obvious. Provided that the situation is fatal and the existence of the democratic structure is seriously endangered, armed forces can be deployed.365 A decision to bring armed forces into action to effectively defend the constitution against threats from a terrorist regime would thus be a legitimate one and would lie well within the scope of competence. A correspondingly serious situation has not yet arisen, even though the call for a deployment of the armed forces has become loud from time to time in the past, e.g. during summer 1981 in the Navarre Region in the Pyrenees to prevent assumed ETA members from infiltrating and crossing the border. Another occasion was the EXPO ’92 where military units were set in to observe train lines. According to Section 62.h) of the Spanish Constitution, the King exercises the supreme command of the armed forces. The Spanish Parliament has different competences according to Section 4 of the Organic Act on National Defence.

364 Relevant provisions are stipulated in the Royal Decree 1125/1976, Organic Law 4/1981 on the Declaration of Emergency and Law 2/1985 of January 21st 1985 on Civil Protection. 365 Lorenzo Cotino Hueso, “Military Law in Spain”, in European Military Law Systems, ed. by G. Nolte, p. 724 et seq.

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These competences comprise the definition of general lines of the Spanish defence policy or the authorisation of a participation of the national armed forces in foreign deployments and missions abroad according to aforementioned Organic Act. The competences of the Spanish Government (“El Gobierno”) are however not confined to determining the defence policy and attending to their execution. It also conducts military administration and the defence of the State.366 Specific competences of the Prime Minister (“El Presidente del Gobierno”) allow for a determination of the direction of the Defence Policy and its aims, to handle situations of defence related crises as well as to determine the strategic direction of the military operations.367 The competences of the Ministry of Defence (“El Ministro de Defensa”) comprise the directing of the military administration and the legal development of Defence Acts, e.g. by means of decrees.368 The National Council of Defence (“Consejo de Defensa Nacional”) coordinates and advises the Prime Minister on defence related issues.369

bbb)

Security Forces

The Spanish Constitution distinguishes the Armed Forces from the Police Forces and the Civil Guard. Police forces on national and local levels and police forces of autonomous communities as well as the Civil Guard (“Guardia Civil”) as a mixed institute of military nature are governed by virtue of Sections 23, 24 and 25 of the Organic Act on National Defence370 and Sections 11 and 12 of the Organic Act on Security Forces.371 Beside the well known Guardia Civil, other police units in Spain are the Policia Nacional, Policia Local or Policia Urbana. Apart from that, a special unit named Mossos d’Esquadra serves in certain regions of Catalonia. The police system can be divided into four main branches: The Guardia Civil, the Cuerpo Nacional de Policia, the police forces of the three autonome regions of Spain, summarised under the concept Policı´a Auto´nomica, and the Guardia Urbana or Policı´a Municipal.

1)

Guardia Civil

The Guardia Civil is a Spanish paramilitary police unit and was founded by the Duque de Ahumada in the year 1844 during the reign of Queen Isabel II after 366 According to Section 97 of the Spanish Constitution and Section 5 of the aforementioned Organic Act on National Defence. 367 See Section 6 of the Organic Act on National Defence 5/2005, supra. 368 See Section 7 of the Organic Act on National Defence 5/2005, supra. 369 See Section 8 of the Organic Act on National Defence 5/2005, supra. 370 Organic Act on National Defence 5/2005 of November 17th 2005, supra. 371 Organic Act on Security Forces 2/1986 of March 13th 1986, BOE 63/1986 of March 14th 1986, p. 9604.

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the first Carlist War to ascertain the occupation in the newly created border zone at the Pyrenees. At present, this unit performs military as well as civil functions. On the basis of this double role, the Guardia Civil comes under the authority of two commands: the Ministerio del Interior and the Ministerio de Defensa. In times of Franco, the Guardia Civil was widely used as a political instrument to suppress dissidents. Most commonly, the unit was used to demonstrate presence and power to the urban residents. It also played in ingloriously role on February 23rd 1981, when members of the Guardia Civil under Lt. Col. Antonio Tejero together with a few army units under General Milans del Bosch tried to provoke a military putsch against the young Spanish democracy in the Past-Franco-Era. Permanent and primary objectives of the Guardia Civil are laid down in the Organic Act on National Defence372 and in the Organic Act on Security Forces.373 As the police force responsible for public security in the national territory except for capitals of provinces and specific cities, the Guardia Civil is tasked with custody of overland communication routes, shores, borders, ports and airports, centres and facilities. Additional tasks comprise safeguarding against tax fraud and activities aimed at the avoidance and pursuit of smuggling. In missions relating to the safeguarding against tax fraud, the civil guard depends on the Treasury Department. Due to its military nature members are not permitted to join trade unions, unlike members of the Policia Nacional. Notwithstanding its doubtful past, the Guardia Civil is nowadays quite well reputed and the popularity of the corps has continuously grown. The Guardia Civil also holds several specialised units such as the special intervention unit “Unidad Especial de Intervencio´n de la Guardia Civil” (UEI) or the defusing squad “Te´cnicos Especialistas en Desactivacio´n de Artefactos Explosivos” (TEDAX). Former unit was founded February 13th 1982 and is composed of approximately 50 people, being the most modern and sophisticated equipped unit in the Spanish army.374

2)

Policia Nacional

The countrywide police agency of Spain subordinated under the sole authority of Spain’s central government and assigned the mission of handling criminal, judicial, terrorism and immigration matters is the Policia Nacional.375 Headed by the Spanish Ministry of Interior, the Policia Nacional is responsible for public security, searchings, investigations as far as drug abuses and trafficking or illegal gambling activities are concerned. Another field of responsibility is the cooperation with police forces of foreign countries. Additional tasks arise from the illustrious responsibility to protect the King and his family during travelling. A field where 372

Sections 23–25 of the Organic Act on National Defence 5/2005, supra. Article 2.1. B) a-g of the Organic Act on Security Forces 2/1986 of March 13th, supra. 374 See http://www.guardiacivil.org/index.jsp, visited May 23rd 2010. 375 Actually “Cuerpo Nacional de Policı´a”. 373

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preferential spheres of action assigned to the Policia Nacional traditionally converge and overlap with those of the Guardia Civil are questions of smuggling, border security and immigration. Consequently, both police bodies may operate in parallels from time to time though the Policia Nacional is commonly referred to as the highest police authority in Spain. But also Policia Nacional and Policia Local may operate in parallels. In such a case, members of the Policia Local monitors the adherence to traffic regulations while members of the Policia Nacional search for wanted criminals. However, these forces are distinctly constrained in deployment and competencies in the Basque Country and Catalonia territories, where the Basque autonomous police “Ertzaintza” and the Catalan autonomous police “Mossos d’Esquadra” handle most matters.

3)

Policia Local, Policia Urbana

Both police services Policia Nacional and Policia Local are individual and independent, yet closely connected and cross-linked bodies. Whereas the Policia Nacional is basically responsible for crimes of higher intensity, the Police Local is competent for tasks that are of minor relevance. The Policia Local is subjected to the individual municipality with individual legislation.376 Typical tasks of the Policia Local are the surveillance of road traffic, public beaches, city centres, and the investigation of minor problems such as general loss of valuables.

4)

Mossos d’Esquadra

The Mossos d’Esquadra377 is the police force of Catalonia, one of the autonomous communities of Spain. Founded in the seventeenth century and thus being the oldest civil police force in Europe, its primary function since then was to protect the people of Catalonia.378 Though it has passed back and forth from Catalan authority to Spanish military command several times, it has been under the authority of the Generalitat de Catalunya since 1980. Yet it appeared and disappeared over the twentieth century alongside the Spanish democratic development. It was not until 1983 that the Mossos d’Esquadra was formally legislated for. Though the original perspective of reducing the number of state police forces in relation to the growing number of regional police forces proved impossible, the Catalonian are not as controversial as the Ertzaintza have been. Unlike these forces, the Mossos d’Esquadra are not responsible for anti-terrorist policing.

376

E.g. the legislation of the Policia Local of Mazzaron, see http://www.mazarron.es/policialocal/ ingles/legislacion.asp, visited May 23rd 2010. 377 Literally: Boys from the squad. 378 http://www.gencat.net/mossos/cme/historiapdf/historia.pdf, visited May 23rd 2010.

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A Comparative Law

Currently, these Catalonian Autonomous Police are taking the place of the Spanish police forces in Catalonia. This process of substitution began in 1994 and is planned to be completed in 2008, even though the Spanish police forces will keep a few agents in Catalonia to handle terrorism, immigration and other limited matters. Among the objectives of the Mossos d’Esquadra are the surveillance of airports, protection of national administration, control of inbound tourism as well as the investigation concerning terrorist activities and organised crime such as forgery of banknotes or drug trafficking.379

5)

Ertzaintza

The Ertzaintza is the police force of the Basque Country whose origin can be traced back to the municipal militias, popular organisations at the service of local bodies, created to satisfy the need for public safety. Though the term Ertzaintza literally means “Shepard of the people”, its response to the continuing conflict and violence in the Basque Country has become increasingly militarised. Since Articles 148 and 149 of the Spanish Constitution stipulate the state’s exclusive responsibility for public security, it allows the maintenance of autonomous regional police forces. Corresponding statutes are effective in both Basque and Catalonia. Currently, the Ertzaintza have decreased their numbers in the Basque Country to a total of 7,500 agents, framed within four divisions, each of them specialized in a series of specific police tasks.380 The local Ertzaintza shares its responsibility for anti-terrorist policing with the Guardia Civil and conduct in addition border and drug control. One major problem of the relationship of the Guardia Civil to the Ertzaintza is labelled as “over-policing”: Due to the creation of a new police force parallel to an already existing one, the ratio of police to civilians is extremely high.381 This problem is even intensified by the gap in local accountability structures since Spanish state forces do not come under the jurisdiction of the Basque government. Yet the Spanish state forces may intervene in local conflicts when requested by the Basque government. Another problem of the Ertzaintza is the increasing militarisation of the police forces. However, some militarised tactics of the Ertzaintza could be witnessed during the last years.382 Abovementioned problems have the inherent

379

See the Law on the Mossos d’Esquadra 10/1994 of June 11th 1994, see http://www.gencat.cat/ interior/leg/l10_1994.htm, for an overview of the functions see http://www.gencat.cat/mossos/ cme/organitzacio/Funcions.html, visited May 23rd 2010. 380 e.g. the so called Beltzak in the field of riot control, the Berrozi or the AVCS, see official website http://www.ertzaintza.net/ingles/html/home.html, visited May 23rd 2010. 381 Mary O´Rawe; Linda Moore “Human Rights On Duty – Principles for better policing: International lessons or Northern Ireland”, p. 164. 382 Mary O´Rawe; Linda Moore “Human Rights On Duty – Principles for better policing: International lessons or Northern Ireland”, p. 199.

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potential to lead to some confusion and competition between regional and national forces. 6)

Miqueletes

Relating to the “Statute of Autonomy” of the Spanish Parliament and the Cortes Generales, the autonome police forces of the Basque Country are the “Cuerpo de Minones” and the “Miqueletes”, under the control of provincial administration in Vizcaya and Guipu´zcoa.383 Their main mission is the participation in maintaining public order and security within their individual area of responsibility. ccc)

Cooperation

After undergoing a distinct change in perception, Spanish doctrine today regards almost undisputedly a use of armed forces for the purposes put forth in Article 8 (1) of the constitution within the scope of collaboration with civil authorities provided that this deployment does not recourse to the military’s armed potential.384 Cooperation of the Spanish Armed Forces with civilian authorities is possible in the event of catastrophes, calamities and other public necessities since the “defence of Spain” as stipulated in Article 30 includes both military and civil defence.385 Additionally, the armed forces may support and assist civil authorities during the evacuation of citizens from abroad.386 Regulations concerning the different types of operations and authorisations required for such operations are likewise contained in the Organic Act on National Defence.387 Due to the Spanish approach of not strictly limiting the fields of responsibilities of the individual security forces such as to establish a security force for internal deployment of military character or to subordinate one institution under two different ministries, cooperation between the armed forces and civil authorities is perceived to be of an incomplex nature.

yy) aaa)

Sweden Armed Forces

The Swedish Armed Forces are branched into the traditional components Army, Air Force and Navy. Regulations concerning the armed forces as an instrument of the 383 See http://www.lehendakaritza.ejgv.euskadi.net/r482312/de/contenidos/informacion/estatuto_ guernica/de_455/adjuntos/estatu_a.pdf, visited May 23rd 2010. 384 Lorenzo Cotino Hueso “Military Law in Spain”, European Military Law Systems, ed. by Georg Nolte, Berlin 2003, p. 731. 385 See Section 15, para. 3 of the Organic Act on National Defence 5/2005, supra. 386 See Section 15, para. 4 of the Organic Act on National Defence 5/2005, supra. 387 See Section 16 et seq. of the Organic Act on National Defence 5/2005, supra.

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Government are provided for in the Swedish Constitution. According to these regulations, the armed forces may be deployed during combat to meet armed attacks against the state and was linked to the provision contained in Article 51 of the UN Charta.388 Crucial role in defining the responsibilities of the armed forces are played by several ordinances and instructions to the Swedish Armed Forces. Among those regulations is the Ordinance on Peacetime Deployment of the Armed Forces389 or the Ordinance on Logistic and Material Support of the Armed Forces to Civil Authorities.390 While the former ordinance contains provisions governing an intervention by Swedish Defence Forces in the event of a violation of the national territory during peacetime and neutrality and allows for a countering of surprise attacks conducted by a foreign state without prior decision of the government, the latter ordinance stipulates an obligation for the armed forces to give logistic and material support to civilian authorities in cases of emergency. One of the major tasks for the armed forces is the formation of the Swedish-led Nordic Battle Group that is planned to achieve deployment readiness during 2008.391 As a government agency responsible for peacetime operation of the Swedish Armed Forces (“F€ orsvarsmakten”), the primary task is to defend Sweden against armed attack, uphold the territorial integrity, contribute to peace and security in the world around and strengthen the Swedish society in the case of severe strains in peacetime.392 Additional tasks are to train and deploy peacekeeping forces abroad and to maintain the defence capabilities of the nation.393 Principal mission of the Armed Forces is thus the defence of Sweden against an armed attack, whatever form it might take, wherever it takes place. This mission comprises to some extend the tasks to prevent the emergence or re-emergence of armed conflicts, to subdue conflicts and prevent the spreading of conflicts to the vicinity or to Swedish territory, to protect in close cooperation with the civilian authorities the territory and people of Sweden against non-military security threats.394 The defence of Sweden against armed attack as the first of these main tasks implies the preparation in peacetime to ensure the ability to counter armed

388

See Chapter 10, Section 9, first paragraph of the Swedish Constitution. Ordinance on Peacetime Deployment of the Armed Forces, 1982:756. 390 Ordinance on Logistic and Material Support of the Armed Forces to Civil Authorities, 2002:375. 391 As declared at the Council of Defence Ministers in Brussels on November 22nd 2004, Sweden, Finland, Norway and Estonia will establish the Nordic Battle Group based on the EU Battle Group Concept, “Annual Exchange of Information on Defence Planning 2006” 1.2.2 (p. 8), valid as of March 15th 2006. 392 See the Instructions to the Swedish Armed Forces, 2000:555. 393 At present, Sweden has military forces deployed in Liberia, DR Congo, Bosnia, Afghanistan and Kosovo. 394 Swedish Military-Strategic Doctrine 2002 Edition (M7740-774002) of June 31st 2002 which is still valid today, see the “Annual Exchange of Information on Defence Planning 2006” 1.1.4 (p. 6), valid as of March 15th 2006. 389

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attacks regardless of their origin. Beyond these deliberations lies the perception that terrorist attacks stemming from the own national territory should nevertheless be coped with as if emanating from a foreign state.395 The maintenance of the territorial integrity is to be achieved by establishing troops near the borders and in surrounding waters to reduce the risk of conflict. The third main mission of the Swedish Armed Forces being the contribution to peace and security worldwide is to be achieved by international peace-promoting and humanitarian operations.396 Under the Law (1992:1152) on Service of Armed Forces Abroad, the Government may, on the request of the UN or following a decision of the OSCE, make an armed force available for peacekeeping operations abroad. A peace-enforcing mission however requires the consent of the parliament. Assistance to the Swedish society in times of severe peacetime difficulty being the fourth main mission of the Swedish Armed Forces is to be achieved by effective cooperation with other authorities and organisations such as the Civil Defence organisation.397 In respect thereof, a number of laws and ordinances govern how the armed forces are to support society in a rescue service and through military assistance with civilian activity in other aspects. Provisions relating to serious accidents, fires and floods are contained in the Rescue Services Act, regulating the duties of state authorities and individual citizens to assist the rescue forces. In addition, the armed forces are also obliged to participate in support activities to other authorities in incidents such as major accidents. Relevant provision in this respect is the Ordinance (1986:1111) on Military Involvement in Civilian Activity, prescribing the provisions on when the armed forces are to carry out transport with helicopters for authorities responsible for medical care and the circumstances under which the armed forces may make personnel and property available to a police authority, the Coast Guard or Swedish Customs for the transporting of personnel and equipment.398 The goal of such activities will always be to ensure optimum utilisation of the resources of society. Severe strains such as floods, radioactive fallout, major power cuts, disruptions to important computer systems and other situations that may lead to such situations are primarily tasks for the sector of society concerned. The principle of not transferring constitutional authority has long been preserved, thus rejecting what is generally known as a constitutional emergency law. According to such emergency laws, state authorities may set aside the constitution and still claim to be acting within the legal framework provided that the existence of the society is at stake. Due to the upkeep of the principle to not transfer constitutional authority, the Swedish Constitution itself contains provisions intended to 395

See Committee Report SOU 2003:32 and the subsequent Government Bill, 2005/06:111. Current operations with military personnel are led by the UN (UNMIL, approx. 230 personnel), EU (ALTHEA, approx. 70 personnel) and NATO (KFOR, approx. 415 personnel and ISAF, approx. 220 personnel). 397 See “The Facts 2005 – Swedish Armed Forces”, p. 6. 398 Swedish Military Strategic Doctrine 2002 Edition (M7740-774002) as of June 31st 2002, Chapter 4, p. 46. 396

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A Comparative Law

enable public institutions to act within the constitutional framework in both times of crisis and war. The relevant provisions under which decisions on crisis measures can be taken are established in the Chapters 1–12 of the Swedish Constitution. Special attention should be directed to the provisions of Chapters 8 and 10 Chapter 9. Whereas the former regulates the delegation of powers to set standards, the latter governs the distribution of powers between Government and Parliament with regard to the authority to deploy the armed forces in combat. Regarding the terms under which the Government may deploy armed forces, detailed regulations within the Constitution and in other legislation such as the Law (1992:1153) on Service of Armed Forces Abroad are in force.399 Main principles of the government to distribute the resources of the total defence organisation are on the one hand to achieve the effect of preventing and mitigating conflict, globally and in the rest of Europe and areas adjacent to Europe with the aspiration of contributing to preventing the conflict from spreading to Sweden’s geographical vicinity and on the other to achieve the effect of preventing and mitigating conflict with the aim of preventing conflicts from spreading to Swedish territory and if this fails countering armed aggression against Sweden.400 bbb)

Home Guard

The “Hemv€ arnet” is the Home Guard of Sweden and thus a voluntary part of the Swedish Armed Forces. It is composed of local defence units led by the armed forces and 23 national auxiliary defence organisations. Though units had already been formed by the armed forces before, it was not until May 29th 1940 that the Home Guard was officially passed into law. According to the principle of the Home Guard, units were located throughout the country in towns and both private and public factories.401 Most of its members were former professional soldiers and equipped with firearms such as machine guns and rifles.402 The mere existence of the Home Guard arises from the Swedish Defence Concept, which is based on four mutually dependent fundamental factors: fundamental defence capability, international cooperation, total defence and national total defence service.403 The objective for Sweden’s total defence is to preserve the country’s peace and independence by helping to manage and prevent crises in the world around, asserting the territorial integrity, defending Sweden against armed attack and protect the civilian population, ensuring that the most important public services continue to

399

Swedish Military Strategic Doctrine 2002 Edition (M7740-774002) as of June 31st 2002, Chapter 4, p. 50 et seq. 400 Swedish Military Strategic Doctrine 2002 Edition (M7740-774002) as of June 31st 2002, Chapter 4, p. 50. 401 See “The Facts 2005 – Swedish Armed Forces”, p. 28 et seq. 402 See http://hemvarnet.se/?action¼visaartikel&artikelid¼71, visited May 23rd 2010. 403 Swedish Military Strategic Doctrine 2002 Edition (M7740-774002) as of June 31st 2002, Chapter 4, p. 51.

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function in the event of an armed attack and war in the international vicinity.404 Within this Total Defence System, 23 voluntary defence organisations contribute to the country’s civilian and military defence on a voluntary basis. These organisations are regarded as an important resource for the Swedish Armed Forces and contribute to the country’s preparedness to act in various areas of society. They are independent and non-profit-making associations and have been set up on the initiatives of the citizens themselves.405 Yet they cooperate with the Swedish Armed Forces who assign them various training tasks. Today, the Home Guard is organised in battalions and companies covering most municipalities.406 Their primary mission is to defend vital military and civilian installations and objects such as power supplies, command and communication systems, airfields, naval bases and ammunition depots. Permanent feature of every battalion is at least one motorised Rapid Response Platoon with the assigned missions of escorting, guarding and counter insurgency.407 Its present manpower has decreased during the last years but still sums up to 37,000 soldiers. Due to the basic principle of the Home Guard of providing local combat units, main focus of the training is on guerrilla warfare. However, the Rapid Response Platoons concentrate more on traditional infantry warfare in combination with regular armed forces. Stated aim of the Home Guard is to achieve combat-readiness within 2 h. During peacetime, the main mission of the Home Guard is to participate in SAR missions, and to provide support in events of natural disasters. ccc)

Police Forces

The Swedish National Police Board or “Rikspolisstyrelsen” is a Government agency dealing with police matters in Sweden. It consists of two departments, the ¨ PO, or “S€ National Criminal Investigation Department and the SA akerhetspolisen”, the Swedish Security Service.408 Each of the 21 counties in Sweden operates its own County Police Authority. Principle agency is the County Administrative Board of Sweden, while the 21 County Governors are the highest authority for each police service in every county. Sweden operates a national police service answerable to the Ministry of Justice and comprising the National Police Board, the National Laboratory of Forensic Science as well as 21 police authorities in the various counties. Units within the National Police Board conducting operational police work are the National 404 Sweden’s Defence Policy as defined in the “Annual Exchange of Information on Defence Planning 2006” 1.1.3 (p. 5), valid as of March 15th 2006. 405 Examples of such voluntary and independent organisations are the Swedish Sport Shooting Association, the Swedish Working Dog Club, the Federation of Voluntary Rifle Clubs or the Swedish Red Cross among others. 406 As of 2006, the Swedish Home Guard is organised into 66 battalions nationwide. 407 In 2001, 122 Rapid Response Platoons and 27 Rapid Response Company Commands were maintained. 408 See http://www.polis.se/, visited May 23rd 2010.

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A Comparative Law

Criminal Investigation Department and the National Security Service. Several specialised units such as the National Counter-Terrorist Unit, the Financial Intelligence Unit or the National Security Service have been established alongside those services, whereas the latter service has been placed under the Ministry of Justice as an independent part of the National Police Board.409 To encounter dangerous situations relating to crowd and riot control, operations against organised crime as well as escorting valuables and persons, the Stockholm Riot Squad “Piketstyrkan” has been established in 1979 on the occasion of a hostage crisis in 1973 and the attack on the German embassy in Stockholm 1975. Despite its name, the Stockholm Riot Squad can also be deployed in other counties, yet it is mostly assigned to regular investigative operations. Prementioned units are backed by a system of emergency police officers, consisting of conscripts within the civil defence, ready to be deployed in a situation of high alert according to the Total Defence Duties Act of 1994.410 The possibility of extending their use is at present discussed within the Swedish Ministry of Justice. Mainly the Police Act charging the police forces with the task of maintaining public order and safety regulates the duties of the police forces.411 As stated in Section 2 of aforementioned act, “it is the duty of the police to prevent crime and other disturbances of public order or safety, maintain public order and safety, prevent disturbances of the same and take action when such disturbances occur, carry out investigations and surveillance in connection with indictable offences, provide the public with protection, information and other kinds of assistance, whenever such assistance is best given by the police and to perform such duties as are incumbent on the police pursuant to special regulations”. In a wider perspective, most police duties are aimed at crime prevention.412 In fact, the government stated in its budget proposals of the past few years that the police should not take on duties incumbent on other agencies but should focus on those duties which their staff are trained to perform.413

ddd)

Coast Guard

The Swedish Coast Guard Service can be traced back to a Royal Ordinance of 1636 that prescribed the establishment of entrance stations. Whereas personnel expenditures were decidedly modest at the beginning of the service, the corps grew with the

409 Basic provisions on the duties of the National Security Services are contained in the ordinance 1989:773 and 2002:1050. 410 Total Defence Duties Act, 1994:1809. 411 See the Swedish Police Act (1984:387), http://www.legislationline.org/download/action/ download/id/862/file/561e3c4cd83d3072c0eec221b990.pdf, visited May 23rd 2010. 412 Section 2 2.2 of the Police Act, supra. 413 Section 2 2.2 of the Police Act, supra.

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incorporation of several provinces.414 Its primary responsibilities comprised the prevention of smuggling by surveying coastline and harbours as well as the seizure of goods on behalf of the authorities. However, its structure became distinctly militarised in the course of a major reorganisation in 1832 to achieve a higher degree of discipline and orderliness. For these reasons, the members of the Coast Guard Service were granted the right to bear arms. Though the military status was subsequently abolished and the Coast Guard Service structured to a civil branch again, the corps remained uniformed. Remarkably, the Coast Guard became assigned additional tasks during the Second World War, expanding their scope of responsibility to certain military and police obligations. Further tasks relating to the safeguarding of environmental aspects such as air reconnaissance were added to the area of accountability of the service. Since 1988, the Coast Guard is separated from the Customs Service and is maintained as an independent civil public authority. According to the Civil Protection Act of 2003, the Swedish Coast Guard of today has the responsibility for the maritime environmental protection as well as for general supervision and surveillance with regard to security. It is organised into one headquarter and four regional commands alongside one flight command. Though the Coast Guard cannot be labelled as a military institution anymore, it still routinely carries arms during patrol.415 eee)

Cooperation

In a way similar to Germany, the issue of the role and deployment of the armed forces in a civil context has been highly controversial in Sweden since the 1930s. From a historical perspective, it was during the politically and socially turbulent decades of the late nineteenth century and the early twentieth century that the armed forces were regularly commanded to scatter disturbances caused by labour disputes, general strikes and riots. Point of culmination of these developments were the fatal ˚ dalen in May 1931 in the course of which five unarmed shootings in the district of A persons were killed by the military troops called in to disperse the general strike. The subsequent investigation led to the imposition of a ban for the armed forces to use their weaponry against civilians, thus constituting the end of military participation in upholding and enforcing public order in Sweden. Despite this clear, distinct and most of all longstanding separation of civil and military objectives within the national territory, the potential needs of the police in the aftermath of the events of 9/11 were in the focus of a Commission tasked with a review of possible support from the armed forces to the police in the events of terrorist activities and other large-scale criminal attacks. The Commission 414 The Swedish Coast Guard commenced operations with two mounted watchmen, see http:// www.tullverket.se/en/startpage/aboutswedishcustoms/swedishcustomsthenandnow.4.3d12a7ea116fc2899518000172.html, visited May 23rd 2010. 415 See “Arbetsordning f€ or Kustbevakningen” of January 29th 2007, entered into force February 1st 2007, http://www.kustbevakningen.se/Documents/Arbetsordning/Arbetsordning.pdf, visited May 23rd 2010.

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A Comparative Law

˚ dalen as reason for delivered its report in August 2005 and evaluated the events of A not allowing the armed forces to provide supportive measures to civil authorities as antiquated and irrelevant. According to the report, civil police forces were evaluated as being capable of controlling most – though not all – terrorist-induced situations. Distinct deficiencies in dealing with terrorist actions in the air or at sea were reported, accompanied by a comparable shortcoming in handling issues of chemical, biological and nuclear substances. 9/11 and its inevitable impact on national security deliberations worldwide was thus the land-mark that led to a new Act regulating the assistance of the police by the armed forces and which made the Swedish break with their traditional division of labour between the armed forces and the police.416 According to the new Act, the police may request supportive actions to intervene against crimes provided that they are covered by the Act on Punishment of Terrorist Crimes.417 Though military personnel should be given police authority in accordance with the Police Act, they may exert force against individuals, yet only under extreme circumstances. Military personnel intervening with the authority of the police must however be placed under the direct command of a police officer. In addition, the principal rule of the Act stipulates a prior consent of the Government to allow supportive actions of the armed forces. This consent is expendable in cases of emergency endangering life and health of people or entailing extensive destruction of property. The application of this new Act is however issued with the caveat that there should always be a restrictive approach to the deployment of armed forces within the national territory. Among fields of possible cooperation within the national territory in the event of peacetime emergency are for example those relating to maritime resources, in particular the Swedish Coast Guard, the Swedish Maritime Administration, the Swedish Police Service and the Swedish Armed Forces.418 Yet cooperation between armed forces and police forces is also admissible during international missions, especially peacekeeping and conflict resolution under the aegis of UN, OSCE, NATO and EU. Such participation of civilian police forces is standard practice since 1964 with the result that in 2005, the Swedish Police took part in 97 international missions in 14 countries, most of them conducting educational and advisory services. Both military personnel and civilian police officers are being trained for deployments within PSO at SWEDINT, the Swedish Armed Forces International Centre.419

416

The Act (2006:343) was adopted in May 2006 and came into force on July 1st 2006. Act on Punishment of Terrorist Crimes (2003:148). 418 Prop. 2005/06:133, F€ oU9. 419 See http://www.forsvarsmakten.se/en/Organisation/Centres/Swedish-Armed-Forces-InternationalCentre/Cooperation/, visited May 23rd 2010. 417

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United Kingdom

During the 1970s, serious consideration was given to the creation of a so-called “third-force”.420 Most distinct feature of this “third-force” was that it was neither of military nor of civilian police nature. The underlying consideration derived from the perception of that time, that the police forces were not equipped or trained for the task of maintaining public order in the event of a serious breakdown or insurrection. The army of that time was to a large extend tied down combating terrorism in Northern Ireland and – in addition – was not regarded as being appropriate to the task. After some debate, the idea was abandoned, leaving the remaining gap to be filled by special task forces of both the armed forces and the police forces. While the latter were trained in the use of firearms and became equipped accordingly, the armed forces developed elite specialist units such as the SAS or the Home Service Force to defend vital strategic assets in the case of emergency.421 aaa)

Armed Forces

The armed forces of the United Kingdom are known as the British Armed Forces or Her Majesty’s Armed Forces, officially the Armed Forces of the Crown with the Queen as their Commander-in-Chief, even though the Ministry of Defence manages the armed forces. On a second sight however, the current state of law applicable to the armed forces owes more to historical factors than to strict logic.422 The respective roles of the Crown and the Parliament concerning the control over the armed forces are quite unique to continental European viewpoints. Since the control of the armed forces is based upon a royal prerogative, the present government exercises this prerogative power as the Crown. This procedure is due to the lack in executive powers of the Sovereign. As a direct consequence of this specific character and due to the decision of the courts that questions concerning the disposition and armament of the armed forces are within the exclusive direction of the Crown, no such decision of the Crown can be challenged before a court.423 Though the House can approve decisions to deploy armed forces by substantive motions, a negative attitude can merely be expressed in debates and questionings both on the floor of

420

Doron Zimmermann “Between Minimum Force and Maximum Violence: Combating Political Violence Movements with Third-Force Options”, The Quarterly Journal, Spring 2005, p. 43–60 (43). 421 Drusilla Wiffen, Martin Edmonds “La Gendarmerie Nationale. A Blueprint for the Future of Internal Security Provision in the West?” Defense Analysis Vol. 5, No. 2, pp. 139–151 (140). 422 Peter Rowe, “Military Law in the United Kingdom”, European Military Law Systems, ed. by Georg Nolte, p. 833. 423 See Chandler v. Director of Public Prosecutions (1964) AC 736, note the comments of Lord Reid.

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A Comparative Law

the House and in committees.424 An obvious advantage of this approach is the considerable increase of flexibility and speed of action since a decision to deploy can be taken by the Prime Minister and a few other ministers.425 Thus, exertion of influence of the Parliament is limited to subsequent debate. This procedure applies to any deployment of the armed forces, be it within the national territory or abroad. According to a general perception, the British Armed Forces are charged with protecting the United Kingdom and its overseas territories, promoting the United Kingdom’s wider security interests, and supporting international peacekeeping efforts. While the explicit mission of a standing army was once “the defence of the possessions of His Majesty’s Crown”, today this mission has altered notably.426 Missions and tasks appointed to the armed forces are determined by the Defence Council and are reviewed and amended when considered necessary. Though the armed forces can be deployed on almost any mission directed by the present Government acting under the royal prerogative or under statute, the Ministry of Defence has exemplarily outlined its mission statements and strategic priorities in one comprehensive document.427 According to this Defence White Paper, the permanent and primary mission of the armed forces is “to deliver security for the people of the United Kingdom and the Overseas Territories by defending them, including against terrorism, and to act as a force for good by strengthening international peace and security”. Defined in a general indicatory manner, the task of the military is to prevent conflicts and build stability, to resolve crises and respond to emergencies as well as to protect and further UK interests. Several specific military tasks may be inferred from aforementioned citation.428 Categorised under four headings, these comprise Standing Strategic Commitments such as nuclear deterrence and strategic intelligence gathering, Standing Home Commitments such as military aid to the civil community and defending the integrity of UK waters and airspace, Standing Overseas Commitments including defence and security of the UK’s overseas territories and defence diplomacy and

424

Though this procedure has been criticised by the Foreign Affairs Committee on occasion of the Kosovo crisis, a proposal for adjustment was rejected by the government; Fourth Report from the Foreign Affairs Committee, Session 1999–2000, Kosovo, Response of the Secretary of State for Foreign and Commonwealth Affairs, August 2000, Cm 4825, p. 10. 425 Steven C. Greer, “Military Intervention in Civil Disturbances: The Legal Basis Reconsidered”, Public Law, (1983), pp. 573, 587 426 Wording as used in the preamble of the Army Annual Act 1913. 427 See the Defence White Paper “Delivering Security in a Changing World” of December 2003, Cm 6041-1, p.4, http://www.mod.uk/linked_files/publications/whitepaper2003/volume1.pdf, visited May 23rd 2010. 428 Whereas the Strategic Defence Review laid out a main Defence Mission, eight subordinate Defence Missions and 28 Military Tasks, the Defence White Paper 2003 adopted only a single Defence Aim and 18 Military Tasks, cf. “The Strategic Defence Review: A New Chapter”, Cm 5566 Vol. 1 of July 2002.

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Contingent Operations Overseas including evacuation of British nationals overseas, humanitarian and disaster relief and military intervention.429 Though members of the armed forces are trained and equipped to deal with public order situations including CRC issues, the rules of engagement for the deployment of the military in this particular role are very precise. Such regulations form part of the guidelines determining the role of the armed forces in Military Aid to the Civilian Authorities (MACA) operations. Even though there are no formal provisions concerning a declaration of internal emergency, Northern Ireland has been under a continuous de facto state of emergency nearly ever since its creation. The Civil Authorities (Special Powers) Acts (Northern Ireland) 1922–1923 were the legal basis for the emergency powers in force from 1922 to 1973, giving power to arrest for interrogation and internment without trial and almost unrestricted power to enact regulations “for the preservation of peace and maintenance of order”.430 Subsequent to this Act, many of these powers were continuously granted by the Northern Ireland (Emergency Provisions) Act 1973. This legislation aimed at an effective fight against terrorism by creating special non-jury courts, referred to as the Diplock Courts.431 Other emergency powers have been provided under the Prevention of Terrorism (Temporary Provisions) Act that applies throughout the UK, e.g. allowing for an extended detainment for a period of up to7 days.432

bbb)

Police

Like in other countries of the British police tradition, police officers of the United Kingdom are not normally issued firearms. Instead, these forces are equipped with other weapons like batons, pepper spray etc. Only in special situations, some officers may be issued firearms. This maxim originates from the formation of the metropolitan police in the nineteenth century when police forces were not armed, mostly to counter public fears and objections concerning armed enforcers. An exception was made however for the Ministry of Defence Police, the Civil Nuclear Constabulary and the Police Service of Northern Ireland. In case of a situation beyond the capability of the units involved, any force can call upon armed response units on short notice. Also specialised squads such as the Flying Squad, Special Branch, Diplomatic Protection Group, Royalty Protection Branch as well as officers protecting airports and government buildings are routinely armed.

429 See the Supporting Essays of the Defence White Paper, http://www.mod.uk/linked_files/ publications/whitepaper2003/volume2.pdf, visited May 23rd 2010. 430 Emergency Law Database Northern Ireland, see http://www.law.qub.ac.uk/schools/SchoolofLaw/ Research/HumanRightsCentre/Resources/StatesofEmergencyDatabase/NorthernIreland/, visited May 23rd 2010. 431 In these Diplock Courts, a single judge under slightly relaxed rules of evidence tried serious terrorist offences until 1975. 432 This legislation has been enacted in 1974, amended in 1976 and 1984 and re-enacted in 1989.

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While the archetypal Bobby used to walk his beat alone, today’s police officers usually patrol by car, except for city or town centres and then rarely alone. Control of policing is shared between the Home Secretary, the Chief Constables in charge of the 43 geographical police forces, and the local police authorities.433 Within this tripartite relationship the Home Secretary is responsible for setting a national framework of priorities through the National Policing Plan whereas the Chief Constables hold operational responsibility for the effective and efficient policing of their forces. Specific tasks of the police forces are set out in a range of statutes, many of them in the Police and Criminal Evidence Act 1984. The structure of the police forces is outlined in the Police Act 1996, subsequently amended by the Police Reform Act 2002. With regard to the structure, the 43 geographical forces are supported by several non-regional forces, including the British Transport Police being responsible for the protection of railway services throughout England, Wales and Scotland in accordance with the Railway and Transport Safety Act 2003; the Civil Nuclear Constabulary as a specialised armed force tasked with the mission of protecting civil nuclear sites and material according to the Energy Act 2004; the Ministry of Defence Police and its own dedicated police forces with full constabulary powers established under the Ministry of Defence Police Act 1987 and the Anti-terrorism, Crime and Security Act 2001 with the assigned mission to combat the principle risks of crime and disorder faced by the Ministry of Defence and the Serious Organised Crime Agency. Latter is a newly established law enforcement agency with the aim of fighting organised crime by adopting the tasks of the National Crime Squad, the National Intelligence Service, Her Majesty’s Revenue and Customs and some tasks of the UK Immigrations Service. Established under the Serious Organised Crime and Police Act 2005, it mainly conducts investigation of drug trafficking and related criminal finance. ccc)

Cooperation

Other permissible operations of the armed forces are the restoration of public security and order, assignments during an internal state of emergency or natural disasters as well as humanitarian aid operations. In the event of the need to restore public order and security within the national territory with the help of the armed forces, the military may be used “in aid of the civil power”.434 Best-known example for such an operation is the deployment of forces to subdue civil disturbances in Northern Ireland. Corresponding assignment thereto is the forces acting as substitute to striking fire fighters in 2002. Remarkably, there is no general legal difference 433

Alan Goldsmith “Polizei, B€ urger und Europa – Aus der Sicht des Vereinigten K€onigreichs” Auf dem Weg zu einer europ€ aischen Poizei, Rolf Moire´, Manfred Murck, Rainer Schulte (eds), Stuttgart 1992, pp. 199–208 (199). 434 Peter Rowe, “Military Law in the United Kingdom” European Military Law Systems ed. by Georg Nolte, p. 839

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between soldiers and other citizens in regard to their duty to respond to the aid of the civil power when it requires his assistance in enforcing law and order. However, exceptions do exist, e.g. concerning special powers that other citizens do not possess. Likewise, an exception exists responding to the requirement to authorise military commanders to act without request by the civil power under very limited and exceptional circumstances. Precondition for such a case is the presence of a grave and sudden emergency, demanding immediate intervention to protect life and property. Besides the possibility to deploy armed forces internally to restore public security and order, an Emergency Powers Act 1920 enables Her Majesty to declare by proclamation a state of emergency.435 Such a proclamation may be due 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.” After issuing a proclamation, the Government may enact regulations to define the details of the measures to be taken. These measures are limited to prevent compulsory military service. Based on this Act, the Defence Council would have been able to authorise the armed forces to cooperate with ministries such as the Ministry of Agriculture, Fisheries and Food to fight the outbreak of the foot and mouth disease 2001. To the present day, the powers taken by the Government under these Acts have never been employed to a full extend. The reasons for the passing of the first Emergency Powers Act can be traced back to the beginning of the First World War. When it broke out, a state of national emergency was declared, the first since the Napoleonic Wars a 100 years before.436 Within a few days, Parliament passed the 1914 Defence of the Realm Act (DORA), including one central proviso.437 This proviso gave the government power to enact regulations in order to secure the public safety and the defence of the realm. After the end of the war, state agencies tried to retain the powers afforded by DORA. Before the expiration of DORA, the Emergency Powers Act was brought in to make exceptional provisions for the protection of the community in case of emergency. At the bottom line, the government empowered itself with the possibility of special sanctions in case of civil disorders, major strikes and pre-revolutionary situations.438 A state of emergency can be declared at any time, if it “appears to the Government that the essential services of the country are threatened” whereupon the cabinet is then empowered to draw up a set of regulations and to “assume such powers and duties as His Majesty 435 Reference to her Majesty is to be considered as a reference to the Government of the day, acting on the basis of the royal prerogative, supra. 436 Tony Bunyan, “The Origins of Emergency Powers Acts in the UK”, The Political Police in Britain, Quartet, 1977, p. 51–56. 437 The Defence of the Realm Act passed the House of Commons without debate on August 8th 1914. 438 Tony Bunyan, “The Origins of Emergency Powers Acts in the UK”, The Political Police in Britain, Quartet, 1977, p. 51–56.

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may deem necessary.” Relevant regulations have to pass parliament and are to be renewed every month. However, this passing of parliament was regularly termed a mere formality. Much criticism was aroused on this account, since in practice power resides in full with the executive, even allowing for a suspension or amendment of all laws.439 The only restrictions under the 1920 Act are the prohibition to introduce compulsory military service or industrial conscription, the proviso allowing for a participation in strikes and the prohibition to alter criminal procedures.440 The Act became mostly applied during strikes of any kind and was in force for long periods, e.g. 8 months during a general strike in 1926. The Emergency Powers Act 1964 extended his predecessor by allowing the use of armed forces in direct employment in agricultural and other urgent work of national importance. These various acts were followed by the Prevention of Terrorism (Temporary Provisions) Act 1974, aiming at a sustainable fight against the IRA. Furthermore, the UK Government has enacted a Civil Contingencies Bill, repealing the Emergencies Powers Acts of 1920 and 1964 as well as the Civil Protection in Peacetime Act of 1986. Likewise, this Bill is facing censure, often marked as “Britain’s Patriot Act” or even “Blair’s Enabling Act” due to its extended scope of application and its inherent threats to civil liberties.441 However, within the civil contingency legislative framework, the Civil Contingencies Act of 2004 illustrates how enhanced emergency and disaster planning has been placed on statutory footing.442 Due to the foot and mouth disease, the fuel crisis and the events of 9/11, British authorities have been engaged in building local resilience plans to take account of the wider range of threats to modern society. Accompanying the Civil Contingency Act, the Government issued several commentary items.443 With regard to military assistance to the civil community, set procedures regulate the circumstances under which armed forces can assist in times of civil emergency. The MoD provides contribution to terrorist and civil contingencies under Military Tasks and refers to such activities as Military Aid to the Civil Authorities (MACA).444 By no means may the military volunteer their services in 439

Tony Bunyan, “The Origins of Emergency Powers Acts in the UK”, The Political Police in Britain, Quartet, 1977, p. 51–56. 440 Ronald Kidd, “British Liberty in Danger: An Introduction to the Study of Civil Rights”, London 1940, p. 50 et seq. 441 “Civil Contingencies Bill: Emergencies Powers – ancient arbitrary powers preserved”, see http://www.statewatch.org/news/2003/jun/23acivil.htm, visited May 23rd 2010. 442 Civil Contingencies Act 2004, http://www.opsi.gov.uk/acts/acts2004/20040036.htm, visited May 23rd 2010. 443 E.g. “Explanatory Memorandum”, http://www.opsi.gov.uk/acts/en2004/2004en36.htm, “Civil Contingencies Act 2004: A Short Guide (revised)”, http://www.cabinetoffice.gov.uk/media/ 132428/15mayshortguide.pdf, Lorna Shore, “Revising Response”, http://www.cabinetoffice.gov. uk/media/310791/lshore-article.pdf, “Explanatory Notes to CCA 2004”, http://www.opsi.gov.uk/ acts/acts2004/en/ukpgaen_20040036_en_1, all visited May 23rd 2010. 444 As laid out in Standing Strategic Tasks, MT 2.1 in the Supporting Essays of the Defence White Paper, 2003, p. 4, supra.

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the event of an emergency without a formal request of the civil authority to do so. Likewise, detailed rules and procedures governing the employment of the Armed Forces for MACA operations and the underlying requirements for a formal request are set out by the MoD.445 Except for cases where human life is immediately at risk, all MACA operations require the approval of the Minister of Defence. However, charges deriving from MACA deployments will be made to the department requesting assistance. Civil Contingency Reaction Forces are drawn from all three branches and provide assistance to civil authorities with evacuation, providing temporary accommodation and general logistical support. As illustrated above, existing provisions concerning internal emergencies cover natural disasters and comparable incidents. However, no constitutional impediments hinder the armed forces from a participation in humanitarian operations outside the territory of the Kingdom. Both national and international employments in the field of humanitarian and disaster relief operations are admissible at the request of the Foreign and Commonwealth Office or the Department for International Development.446 Within the scope of such a deployment, the Secretary of State is authorised in conformity with the Reserve Forces Act 1996 and based on the royal prerogative to call out members of the reserve forces if deemed necessary “for the protection of life or property 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”.

b)

European Gendarmerie Force

The European Gendarmerie Force (EGF) was launched by an agreement between five members of the European Union (France, Italy, Spain, Portugal and the Netherlands). Its purpose was the creation of a European intervention force with military police functions, specialised in crisis management to bridge the gap between soldiers and policemen in peacekeeping operations.447 Consequently, all participating member states have paramilitary police forces beside their national armed forces and civilian police forces. Based in Vicenza in 445 See the joint doctrine publication “Operations in the UK: The Defence Contribution to Resilience”, see http://www.mod.uk/NR/rdonlyres/4F984DE3-6CA0-42D9-8BFF-FC90A07C04BF/0/ jdp02_2nd_edition.pdf, visited May 24th 2010. 446 “The Role of the Ministry of Defence and the Armed Forces” The Government’s Expenditure Plans 2003-04 to 2005-06, Ministry of Defence, 2001, p. 6, see http://www.mod.uk/NR/rdonlyres/ 9B36F833-E063-4569-B03B-0F4D226C5375/0/gep_0304to0506.pdf, see also “Defence Plan 2010 – 2014”, http://www.mod.uk/NR/rdonlyres/AB3A3278-2820-40EF-AA15-9BDA7D0A531 8/0/Defence_Plan_2010_2014.pdf, visited May 24th 2010. 447 Dutch Minister of Defence Henk Kamp after the Signature of Declaration of Intent for a European Gendarmerie Force, Noordwijk, Netherlands September 17th 2004, see Library of the House of Commons, Research Paper 06/32, June 8th 2006 “European Security and Defence Policy: Developments Since 2003”, p. 39, http://www.parliament.uk/documents/commons/lib/research/ rp2006/rp06-032.pdf, visited May 24th 2010.

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north-eastern Italy, the EGF consists of 800–900 members, ready to deploy within 30 days. In addition, a pool of reinforcements will be on standby. The proposal for this force can be traced back to the French Defence Minister, Michelle Alliot-Marie from 2003. The defence ministers of the five countries finally signed the agreement on September 17th 2004 in Noordwijk, Netherlands. The possible initial deployment may be the Balkans to help develop stability. Earmarked for post-conflict peacekeeping, maintaining public order and other policing duties, the new gendarmerie is to be sent to places where law and order has deteriorated but not completely broken down, or where a conflict has subsided and heavy armed troops are no longer needed.448 The EGF may intervene at several stages of a crisis. At the military stage, the EGF is committed in the wake of the military force and carries out missions of general public safety and detective police. At the transition stage and crises of medium-range intensity, EGF continues its mission and facilitates the coordination and cooperation with police units. In a stabilised theatre, EGF facilitates the transition to cooperation action under international civilian authority. In addition, EGF may be utilised as a preventive measure in very specific cases should no military force be previously be deployed.449 Though the tasks of the EGF may vary due to the specific mandate, possible duties comprise the performance of security and public order missions, the monitoring of and advice for local police forces including criminal investigations, the performance of public surveillance, border policing and general intelligence, the autonomous performance of criminal investigation and detection of offences and the cooperation with relevant judicial authorities, the protection of persons and property, the surveillance and prevention of public disturbances, and the training of police officers and instructors to international standards by means of cooperation programs. Compared to the European Police Force, the EGF is expected to add further value to multinational cooperation. Main aspects in this context are the capability for rapid deployment, the capability to perform in more robust police missions under more demanding circumstances and under military command, to offer possibilities to improve interoperability between EGF participants and other police forces and the capability to be integrated in a military crisis management tool. Additional value is expected to derive from the extensive experience of the participants in all kind of police missions, especially more robust missions such as MSU and IPU. The High Level Interdepartmental Committee (Comite´ Internministe´riel de haut Niveau, CIMIN) is composed of representatives from the responsible departments and acts as a management board. The EGF Commander 448

Bill Hayton, BBC news editor, http://news.bbc.co.uk/2/hi/europe/3665172.stm, visited May 24th 2010. 449 Chapter II, Article 4 of the Treaty establishing the European Gendarmerie Force, see http:// www.eurogendfor.org/referencetexts/EGF%20Treaty%20english%20version.pdf, visited May 24th 2010.

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(COMEUROGENDFOR)450 is supported by a HQ, composed of a permanent core of 15 officers and 14 NCOs, which can be reinforced up to 50 persons.451 Possible reinforcement could cause the total strength of the EGF to reach 2,300 personnel. The EGF is then composed of one operational component, a crime-fighting component, and a logistic support component.452 Concerning the chain of command and control, the CIMIN is the political body that determines the general political decisions and provides leadership to the EGF Commander.453 In the event of a deployment of the EGF within the scope of a crisis management operation, a strategic political supervision will remain with the political authority of the organisation. At an operational level, COMEUROGENDFOR is responsible for planning and training as well as advising the participants to enhance interoperability and to contribute to a strategic decision-making progress.454 Despite its name, the European Gendarmerie Force is not an EU force but rather a multinational initiative by five countries within the EU.455 Despite that, the EGF will mainly be composed of the same forces as those included by the participants in the Helsinki catalogue, the civilian crisis management according to the conference held in Brussels on November 19th 2001 and the Civilian Capabilities Commitment Conference of November 22nd 2004. Furthermore, the EGF will be first and foremost at the disposal of the EU.456 However, the EGF can be deployed on request and under the mandate of other international organisations such as UN, OSCE and NATO or of an ad hoc coalition. Legal basis for such deployments will be relevant UN Security Council Resolutions or political guidelines from the EU or other international organisations. The specific quality of the EGF is the particular military status of the police forces. The civilian police capabilities committed to the EU within the scope of the Police Headline Goal and the EU Civilian Capabilities Commitment Conference comprise both police services with a civilian and a military status. Among the participants, this particular diversity is regarded as a qualitative asset for the EU since the EU’s actions on the Petersberg tasks require a strong synergy between the police and on military components in the case of an operation involving both military and police components.457 In view of the considerations that led to the establishing of the German principle of separation between the police and the armed forces, some attention needs to be

450

Currently Colonel Jorge Esteves of the Portuguese GNR. See the organisational chart of the EGF at http://www.eurogendfor.org/, visited May 24th 2010. 452 See http://www.eurogendfor.org/, visited May 24th 2010. 453 See http://www.eurogendfor.org/, visited May 24th 2010. 454 See http://www.eurogendfor.org/, visited May 24th 2010. 455 Enrique Esquivel Lalinde “The New European Gendarmerie Force”, Defence & Security, ARI No 48/2005 – 9/5/2005, p. 2. 456 See http://www.eurogendfor.org/referencetexts/EGF%20declaration%20of%20intent.pdf, visited May 24th 2010. 457 See http://www.eurogendfor.org/, visited May 24th 2010. 451

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A Comparative Law

drawn to the underlying circumstances to allow for a comparison and a serious review of this evaluation. At least two convincing reasons may be invoked, which may dissent from the confidence of the EGF’s value. The first reason concerns doubts as for an essential political neutrality of the forces. Since units of the EGF are specially designed for deployments within foreign assignments, objections concerning a deployment within the national territory as they were raised in Germany are not expressed. Main objection concerning such a deployment within the national territory was the contradiction to democratic maxims, the requirement of political neutrality of armed units and the underlying threat to society. Yet – similar to a deployment of armed forces mandated by the UN, the EU or NATO within peacekeeping missions – these objections were inapplicable in the case of the EGF since a threat to the own population was not posed. Moreover, principal objections against paramilitary forces are not as widespread in the countries participating in EGF as they are in Germany. This commonplace is clearly demonstrated by both the maintenance and the operational deployment of such paramilitary or hybrid institutions within the national territory, let alone a participation in EGF. What remains however, is the reason concerning a threat posed by the EGF taking a negative role model status for the surroundings in which the forces are deployed. Since it is not only likely but rather definitional that this environment will be a “failed state” or at least a post-conflict setting, the need to establish a good example with regard to a separation of forces is highly desirable. Moving cause for a separation of armed forces and police forces in a modern state are the experiences gained during the past. And these experiences need to be conveyed to young and instable nations still in the process of settlement. It will be a challenging and somewhat contradicting task to deploy intertwining or hybrid institutions and demonstrate the reliance on such forces in the course of a peacekeeping or stabilising mission while at the same time postulate the demand for a division of responsibilities of the nation’s security forces to meet the basic requirements of a democratic state. Only too easily the receiving country might adopt the demonstrated and seemingly unproblematic application possibilities of paramilitary units within its own security instruments. This may lead in turn to a serious imperilment of the democratic structures by impeding a clear allocation of tasks. Thus, the mission of the EGF is basically comparable to those of paramilitary forces in the participating member states. However, its area of specialisation relates to foreign assignments such as peacekeeping missions or international police missions. Though the doubts concerning political neutrality may not predominate due to its specific mission, aspects of an at least disputable example may carry some conviction.

c)

Bi- and Multinational Joint Forces

Bi- and multinational joint forces such as the MNCNE, Eurocorps, EUROFOR and the Dutch-German Corps operate under individual mandates of the national

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government or parliament or within NATO. The Convention of the MNCNE defines in its Article 3 tasks and missions of the corps with the reservation of “national limits”, thus acknowledging varying interpretations and definitions of the participating countries. Possible missions of the Eurocorps are put forward by the “La Rochelle Report”, limiting the scope of possible assignments to combat missions, but also peacekeeping an humanitarian missions.458 Likewise, the FrenchGerman Brigade may be utilised and deployed for defence missions under Article 5 of the North Atlantic Treaty and in accordance with the relevant SACEUR-Agreement. Additional tasks of the French-German Brigade may arise from a participation in humanitarian missions. The responsibilities of the German-Netherlands Corps are defined in Article 3 (1) of the Corps Convention, assigning common defence tasks as per Article 5 of the North Atlantic Treaty or Article V of the revised Brussels Treaty to the corps. Thus, the corps may be utilised to fulfil multinational crisis management tasks within the legal framework of these provisions. The scope of responsibility of EUROFOR and EUROMARFOR comprise combat missions as laid down in the Madrid Declaration of 1995.459 Other multinational military units such as the Lithuanian-Polish Battalion LITPOLBAT or the Polish-Slovak-Czech Brigade are prepared to participate in peacekeeping missions. At the bottom-line, multinational military units are strictly organised and structured along NATO lines, widening the scope of possible assignments to peacekeeping missions beside the primary task of engaging in combat operations. Possible pitfalls are likely to arise within the NATO framework due to “national caveats”, these shortcomings shall however not be dealt with in this review.

d)

Intermediate Result

The review of European systems to divide labour between the various security forces led to unsurprising findings. After looking to the different strategies of the EU member states to differentiate between armed forces and police forces, certain parallels become evident. Most countries stick to one of three major approaches. Among those legal instruments are constitutional provisions, but also stipulations by statute or executive authority.

2)

The Mission of European Security Forces

The basic distribution of tasks within other EU member states seems in many ways similar to the German system. The perception of the tasks of the police 458

Report of the French and German Ministries of Defence on the Establishment of the European Corps, see E. Martin (ed.), Eurocorps und Europ€ aische Einigung, Bonn, 1996, p. 547–592. 459 See Common Declaration of the WEU Council of Ministers in Madrid on November 14th 1995.

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A Comparative Law

forces is primarily to guarantee the continuity of inner security within the state, while the armed forces fulfil at the very least additional tasks concerning external security and missions abroad to strengthen national interests and safeguard the existence of the nation. This security sector as a whole can be divided into two areas, firstly the security forces, comprising the police forces, military forces, border police, gendarmerie, intelligence service and private security services. Thus, policing needs to be understood in relation to the activities of paramilitary units, special guards, or even quasi-official units. Regarding the legislator, it is utmost important to develop an appropriate legal framework that will serve as basis for police actions. Only this will mark the extent of the mission to police and military authority and help make police duties and responsibilities transparent to both the police and those with whom they deal. Strengths, weaknesses, opportunities and threats need to be analysed since the role of the military and the police allow no ambiguities about their functions and roles in national security structures. The second sector would be the civil authorities supervising and monitoring these forces, keeping them in conformity with the particular democratic values. Of particular interest to this respect are the definitions of armed forces and police forces and their respective missions, which will be approached in the following chapter.

a)

The Need for Separation

In the context of social responsibility and political neutrality, civil-military relations need to be broadly understood to encompass relevant aspects of relations between the military and the remaining society. When discussing the political function and position of the military one refers to the relationship to instruments of political authority, all the same forming the core of civil-military relations. On the other hand these relations encompass wider issues, such as the general attitude of society towards the military and vice versa as well as the mutual perceptions of what the respective roles should be. Additional consideration needs to be given to traditional habits and economical situations. Whereas in bygone days defensive functions were maintained by almost everybody capable of fighting, later armies were based on conscription rather than on traditional recruitment. This shift in recruitment base brought a new ideology into being, defining the military as a national defender rather than as an oppressor, thus reconfigurating the armed forces into a motivational orientated and socially responsible institution. In the population, the image of the armed forces as national defender became highly valued, rating the overall military mission a noble and necessary task. By consecrating external threats as the legitimate target, the military became less and less available for internal use. And any involvement of military personnel in police missions was now much more likely to create the risk of disobedience, defection, and institutional disintegration. It was the narrow and

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more limited jurisdiction that allowed the military to remain neutral and outside of domestic politics since the mission to defend the community against external threats also meant the defending of the ruling political party. In case the armed forces are not already intensely politicised, its natural tendency is to protect its neutral status and to resist attempts by politics to place it in opposition to society. In case this resistance is insufficient, the armed forces tend to split into various groups as it is forced to contend with issues normally considered resolved, such as the necessity of obedience to orders and the legitimacy of political authorities. Yet the picture is often considerably more complicated, since not only civilian elites tend to draw the military into politics but also the military itself faces moral difficulties in deciding where their loyalty should lie, especially when the society concerned is subjected to deep political divisions. It is thus indisputable that a military needs to be embedded in a stable social background to meet democratic requirements. In respect thereof, a widespread and transparent conscription army helps incorporating the military into society by becoming part of it. Though this might be an especially important fact to states in the turn to democracy, it seems to be of minor importance to settled democratic states.460

aa)

Relevant Examples of Military Intervention in Domestic Politics: From Ceausescu to Berisha

Examples not to underestimate the effects of a politically influenced military can be found in the pre-Soviet times when armed forces (externally) intervened in the domestic politics of a number of Central and Eastern European countries, regularly alongside and supporting authoritarian political forces. Especially European contemporaries can recall at least four incidents in Central and Eastern Europe since the fall of Communism where the use of military forces as internal security forces could be witnessed. All four events had in common, that the sitting government justified their decision as a throughout legal response to illegal challenges directed against the political order and pretended legitimate government. One of the most notorious episodes was the mobilisation of troops based on the false justification of a foreign invasion, ordered by Nicolae Ceausescu during December 1989 in Romania to defend his leadership and his regime against widespread demonstrations. In the aftermath of the confusion initiated by the security police forces which tried to divert the opposing army with however only

460 Souren G. Seraydarian, “Post-Conflict Security Arrangements” in After Intervention: Public Security Management in Post-Conflict Societies, Vienna, ed. by Anja H. Ebn€other and Philipp H. Fluri, August 2005, p. 53

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A Comparative Law

a moderate effect, the incident lead to the death of thousands of civilians and military casualties.461 Only 1 year later, the government of Joszef Antall tried to deploy armed forces to stifle an insurrection of striking mineworkers. During this event, the military strongly depreciated their assignment and found their affirming counterpart in the President Arpad Goncz who – interposing his veto – put an end to this confrontation. Again a few years later in March 1997, the government of Sali Berisha brought the Albanian Army into operation against protesters, taking to the streets against his government’s actions. Also this deployment was justified by the government’s need to take measures against regime-threatening agitators. This time, the military disintegrated, breaking down into several splinter groups. While the major part of these factions sided with the protesters, military weapons stores were opened to the general public, leading to a massive proliferation of arms and consequential to a break-down of the law-enforcement capabilities and social order. It took a number of NATO and other interventions as well as UN sanctions to stabilise the situation in Albania. At the beginning of 1999, the government of Romania called the army to subdue a miner’s rebellion. Though a direct confrontation between the military and the miners could at last be avoided, a growing sense of alienation arouse within the military towards the government and administration. These few examples depict quite clearly the potential tendency of governments and administrations to render threatening demonstrations illegal and to resort to military means during socio-economic protests. Under these circumstances, apprehension of a military intrusion in domestic politics was hardly unjustified, despite the alleged justification “to protect the achievements of socialism”, “to maintain domestic order”, or “to secure national interests”. How far-reaching such events can is illustrated by the incidents alongside the struggle in the Soviet Union between hardliners and reformers in 1991, where the military intervened to suppress independence movements in the Baltic States, which eventually led to the unsuccessful August Coup attempt.462 The strong conviction of the ruling elite justifying these measures is mostly founded in their belief of having full authority over the military. From this viewpoint, the right to use the armed forces in cases of civil unrest is often supported by the wording of the relevant constitution, admitting the government to call on the military to backup the civil authorities. However, the vital point in this discussion is not the question of who is in command of the military but rather for what purposes the military may be legitimately utilised. All too fast excuses are

461 Reports quote 20% military casualties thereof, see Larry L. Watts, “The Romanian Army in the December Revolution and Beyond” in Romania after Tyranny, ed. by Daniel N. Nelson, Boulder, Westview, 1992, p. 95–126. 462 Andrew Cottey, Tim Edmunds and Anthony Foster “Democratic Control of Armed Forces in Central and Eastern Europe: A Framework for Understanding Civil-Military Relations in PostCommunist Europe”, 1999, Nottingham, p. 3

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based on argumentation that the civil protests are of such a dimension to imminently endanger the existence of the nation. The reason for such a decision must be carefully judged. Any employment of the military is a measure of last resort as far as the existence of a nation is concerned. It must not be deployed as a countermeasure against endangerment of the political survival of a government.

bb)

“Mutual Checks and Balances” of a Modern Democracy

Basic idea behind the rather general formulated term “democratic control of armed forces” is the core normative assumption that the military should not be involved in domestic politics, but rather acts as an apolitical servant of the government. Any internal employment of the armed forces on the internal of a nation as a security force will stringently politicise it, leading in turn to an increasing professionalisation of military-police institutions. These institutions can in general not serve as a substitution for regular police fulfilling the task of reproducing public and social order on a day-to-day basis. Quite the opposite holds true, such an intertwining institution is regularly an indicator for a political police defending a political regime against internal menace. It has long been a typical character of authoritarian regimes, that military as well as police forces are charged to defend a political status quo. Many Communist systems in Europe joined their military and the police to “Armed Forces” under the Soviet dominance. This convergence of internal and external defence caused a preceding militarisation of the police as well as a continual blurring of the two spheres of internal and external security, aiming at a closer tie of the now politicised military to a certain political regime. This special relationship between the military as a widely neutral instrument and the police as an inherently political institution in a state is often referred to as the mutual checks and balances of such a modern parliamentary democracy.463 In fact, the more the military is assigned internal security functions, the greater seem the risks of becoming embroiled in domestic political conflicts, and of wielding democratically unaccountable power in civic life.464 By allowing the military and the police to transform into a hybrid body, their both professionalism converge as their institutional roles do. Again, this leads to an unbearable contradictory strain between the interventionist role concerning domestic politics and the requirement of undertaking repressive actions against portions of society. Reconciliation of professional social responsibility requires separate institutional roles of the military and the police.

463 Larry L. Watts, “Whose Professionalism?: Separating the Institutional Roles of the Military & Police” The Conflict Studies Research Centre, Surrey, England, 2001, p. 8. 464 Larry Diamond; Marc Plattner, (eds.) “The Global Resurgence of Democracy”, Johns Hopkins University Press, Baltimore 1996.

136

cc)

A Comparative Law

Integration into a Democratic Political System

A current challenge of armed forces is the integration of the military into a political system, matching its democratic principles. Though this is more likely a problem occurring in less consolidated or stable nations, also Europe has witnessed the impact of armed forces on its history in the past. Armed forces have always been a possible alternative centre of power and thus a threat to any government, whether authoritarian or democratic since they possess the means to threaten or even to use force for repressive purposes on any level of society. Consequential events can be found in the history of Spain or Italy but also in Germany and many other nations, though some incidents may have been less dramatic than others. From a political perspective, armed forces combine three massive advantages over civilian organisations: their marked superiority in organisation, a highly emotionalised symbolic status, and their monopoly of arms.465 This consequently raises the question of the relation of the armed forces to their civilian leaders. The right to deploy armed forces can be defined with one simple principle. In a democracy, armed forces are at the disposal of the respective legitimate government while the representatives of the nation hold the forces accountable. Required to abide by the law and the constitutional provisions, both the armed forces and their political leaders have ultimately to accept the will of the parliament and the judgement as well as the interpretation of the constitution by any court responsible. Mostly they are rather involved in armed defence missions on the national territory and its approaches and abroad than in security missions, though such a mission is generally possible, depending on the legal framework and what is deemed necessary by the particular government. The fundamental goal is to create a force, which benefits and serves the nation by contributing to the provision of security, provided that the political framework is democratic in substance as well as in name. In some cases armed forces have served authoritarian governments in an incurious manner without taking part in it itself. In other cases, armed forces have constituted the government itself while in others again, armed forces served as a military part of a ruling political party after a revolution or independence. A successful integration of armed forces into a political system demands furthermore legal and other mechanisms to protect the military from political influence. Clear constitutional arrangements and chains of command may be conducive to the problem of politicising the military, as they might prevent the armed forces of being faced with political and moral dilemmas concerning their loyalty. Where clear limitations and regulations about the legal framework are lacking, uncertainty of how to respond to requests by civil politicians to participate in political actions arises. Furthermore, it is necessary to bind the parliament to a certain extend to military matters by general information about defence issues and consequential debates. The interaction and involvement depends on the particular political system. Strong executive presidencies call for

465

Samuel Edward Finer “The Man on Horseback – The Role of the Military in Politics” New York 1962, p. 6.

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other arrangements than weak multi-party coalitions. This proves especially true when it comes to a despatch of armed forces outside the national territory. In a democracy, a strong support across the political spectrum is desirable, since many constitutions stipulate a parliamentary permission, affording an opportunity for smaller parties to gamble for political concessions. Visible symbol for such a democratic framework is a constitution that encompasses these characteristics as well as features like a civilian defence minister or a parliamentary defence committee. These guiding principles, regularly proposed to numerous countries currently in the process of “nation-building”, quite naturally also apply to traditional democratic states. Yet they are simply a completion to the main requirements for a successful functioning of armed forces in a democracy like political structure, culture, and behaviour.

b)

The Mission of the Armed Forces

During the decades since the end of the Cold War, armed forces have regularly been deployed on missions with a rather police-like character. Today’s soldiers have recently acted as guards, diplomats, judges, arbitrators, paramedics, administrators, teachers and social workers. Some soldiers have even fulfilled police-related tasks within their national territory such as supporting border guards during an increased flow of refugees, guarding diplomatic missions, fighting terrorism or suppressing potential conflicts of ethnical entities.466 Armed forces with mainly a constabulary mission were setting the trend while the original task of defending the national territory faded into the background. However, the military has often complained to having been pushed into a role exceeding the traditional perception of their mission, encouraged by the conditions of a humanitarian operation. Though the term “policing” is frequently used in this context, it is a rather broad description and the need for a fundamental distinction is obvious. In fact, policing describes activities of a certain general character, associated with the maintenance of international standards of law and order. Unlike these general activities, the term “police work” implies tasks like crowd and riot control, small-scale conflicts as well as the tracing of individual crimes and war crimes. Even though the military performs a sort of policing on occasions like patrolling, their response to disorder remains reactive and their role is basically supportive. But even more important “they are the coercive resource of last resort and cannot be seen to fail”.467 Distinctive features of police works are in general most certainly the knowledge about local conditions and special skills but in peace operations, their skills are vastly artificial and 466 So-called “police assistance operations” are common practice in countries like Italy, Northern Ireland, Austria or Switzerland. 467 Alice Hills, “The Inherent Limits of Military Forces on Policing Peace Operations”, International Peacekeeping, Vol. 8, No. 3, Autumn 2001, p. 81.

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A Comparative Law

selective since monitoring elections or local security forces do not belong to their normal duties. It is significant, that most police officers do not like to see their mission being too closely associated to the military, perceiving the military rather as a backup to guarantee a loophole. At the bottom-line, peace operations have not consistently been regarded as a success. In fact, this “constabulising” of the armed forces could quite possibly be a reason for the failure of several peace operations if conventional military organisational structures are considered as inadequate or even ineffectual to cope with police tasks. According to this development, a definition of today’s armed forces´ mission requires an antecedent definition of the military.

aa)

Defining the Military Force

A definition of the military and its distinctive features can be challenging. Yet previously it has to be considered, that additional problems lie in treating the military as a single, coherent whole. In reality, the military is often divided on the question of whether to intervene as well as of which side to take. Quite commonly, a further division between officers and conscripts exists, adding to the complexity of the situation especially in Eastern Europe. Finally, paramilitary forces have to be differentiated from the regular military since these hybrid institutions are more likely to intervene in domestic politics.468 Armed forces or the “Military” owe their name to the Latin term miles meaning soldier. Today, the term implies armed units sponsored by a nation or an alliance to fend off external attacks, to execute such attacks itself or to achieve political objectives in general. Besides safeguarding the security of a nation, their primary task of today shifted from large-scale warfare to peacekeeping and peace support operations. Mostly, the military is divided into three branches, the army, the air force and the navy. However, France keeps the Gendarmerie as their fourth branch with an almost equal status whereas Germany defines the Central Medical Services (“Zentraler Sanit€ atsdienst”) and Joint Service Support Command (“Streitkr€ aftebasis”) not as a regular military branch but an organisational sector (“Organisationsbereich”). Military organisations are coined by their hierarchic structure at the command of the military leadership but have to accept far-reaching limitations in their personal freedoms and constitutional rights. They are obliged to being subjected to an integrated command, which is in turn answerable to the state for the leadership of the subordinates. In addition, armed forces are obligated to distinguish themselves from civilians by displaying their uniforms, ranks and insignias. Armed

468 Andrew Cottey, Tim Edmunds and Anthony Foster “Democratic Control of Armed Forces in Central and Eastern Europe: A Framework for Understanding Civil-Military Relations in PostCommunist Europe”, 1999, Nottingham, p. 3.

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forces are also under obligation to being subjected to an integrated disciplinary system and are bound to carry their weaponry open. Matter under present discussion concerning the mission of the military is the tension between the two seemingly contradicting fields of war-waging on the one hand, and of peace-, state- or nation-building on the other hand. Originating from a changed social and most of all political environment after the Cold War, it can thus be considered as a reaction of an institution to a change in its milieu. It manifested in a restructuring and size-reduction of many European armies as well as increasing arms expenditures and a general disarmament. Nevertheless, this did not imply a decrease in military missions. On the contrary, more armed forces ever than before were assigned military operations though most of these operations did not correspond to the sample standard military mission in a traditional sense. More appropriate would be the description of “general military operations outside the scope of war”, comprising various operations like peacekeeping operations, peace-enforcement, humanitarian interventions as well as post-conflict or state-building missions. Connoting a diversification of tasks, these new types of missions added to the existing “classic” missions like deterrence, defence and attack. Hence, it is indisputable that appearance and character of armed forces can change during the course of historical processes, profiling the military as a dynamic entity. Today’s soldiers are faced with an array of varying tasks during deployments abroad, such as the supervision and safeguarding of peace agreements, mediation and conciliation, border protection, maintenance of internal security, guarding of persons and facilities, safeguarding of threatened ethnic groups, performing humanitarian assistance during natural catastrophes, organising elections, assisting local police forces, re-establishing infrastructure and the general re-establishment of political and social institutions.469 During these deployments, civil-military ties are much closer than in traditional military assignments since cooperation with civil authorities and NGOs has a high value and can even be called a necessary requirement for the overall performance of the mission. These missions referred to are for the most part multilateral military operations, combining efforts of numerous different nations. The military centre of gravity shifted once again due to the events of 9/11, making traditional warfare gain in global importance. While in an overall reflection nuclear warfare lost ground after the end of the Cold War, conventional warfare is likely to have gained in relevancy. Low intensity wars are a typical phenomenon especially of eastern post-communist states, often featuring irregular forces tending to asymmetric warfare in order to compensate their military inferiority. Besides that, also in modern societies a cultural gap grows between the armed forces and the attitude of the general public towards social and military values.

469

Karl W. Haltiner, “Erfordern neue Milit€araufgaben neue Milit€arstrukturen? Organisationssoziologische Betrachtungen zur Verpolizeilichung des Milit€ars”, in Krieg, Konflikt und Gesellschaft. Aktuelle interdisziplin€ are Perpektiven, ed. by Sabine Collmer (Hamburg, 2003), pp. 159–186.

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A Comparative Law

All the more relevancy needs to be attributed to a thorough examination of the military and its genuine tasks.

aaa)

External-Defensive Functions

The intrinsic mission of the armed forces of a primal society is to guarantee the defence of the respective nation against external foes.470 This basic principle has been accepted as applicable since centuries and still comes true today, yet it has been subjected to certain alterations of priorities. In the light of a historical and theoretical approach, the background of the state’s task to guarantee security was formed by the civil wars in England and France. Only a sovereign regent able to assert himself against all warring parties and to enforce peace could protect his reign against aggression of other states.471 Even though the defence against external threats is often still stated as the major task of armed forces, the overall appearance of the military has undergone a distinct change.472 Presence of a military threat to the integrity of a state has always been the moving cause to establish armed forces. Following this perception the differentiation emerged of a defensive war that is waged for independence.473 Given the notion that such a military threat is most likely to be represented by another state, nations tried to integrate themselves in international organisations. This led to developments like the establishment of the CFSP by the EU member states.474 As a kind of compensation for the reduction of border controls within the EU territory, the guaranteeing of security had to become Europeanised. Thus, the legitimising task of the state to guarantee the external defence of a state is increasingly internationalised. In addition, the task of the national state to guarantee physical security of its citizens has long since been escalated to ecologic security as well as to economic and social security. One reason for this development may be the state itself, being extremely vulnerable due to the nature of the modern, technology-dependent and highly industrialised society.475

470

Maurice Davie, The Evolution of War, (New Haven, Yale University Press, 1929), p. 3, 229. ¨ ußeren Sicherheit im Wandel: Staatstheoretische Christian Calliess “Die Staatsaufgabe der A Grundlagen und v€olkerrechtliche Konsequenzen”, Neue Sicherheit im Wandel – Neue Herausforderungen an eine alte Staatsaufgabe, Baden-Baden 2005, p. 19. 472 Kirchof/Isensee (Ed), Handbuch des Staatsrechts der Bundesrepublik Deutschland, Bd. III, 2nd Edition, 1996, } 78, margin no. 3, 24. 473 Carl von Clausewitz “Principles of War”, III. 2. 1, ed. by Hans W. Gatzke. 474 Christian Meiser “Die außen- und sicherheitspolitischen Kompetenzen der EU nach der Verfassung f€ur Europa”, Neue Sicherheit im Wandel – Neue Herausforderungen an eine alte Staatsaufgabe, ed. by Christian Calliess, Baden-Baden 2005, p. 125–143 (133 et seq.). 475 ¨ ußeren Sicherheit im Wandel: Staatstheoretische Christian Calliess “Die Staatsaufgabe der A Grundlagen und v€olkerrechtliche Konsequenzen”, Neue Sicherheit im Wandel – Neue Herausforderungen an eine alte Staatsaufgabe, Baden-Baden 2005, p. 15. 471

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As stated beforehand, the military was originally designed to defend a society against external enemies. Defence in this sense was characterised by Clausewitz as the warding off a blow whereas war per se was defined as a political duel.476 But still, the military added other related activities such as conquest and revenge to its occupation. With the creation of the nation-state in the eighteenth century, the military was then essentially re-assigned the defence of the broader all-inclusive community as its principal raison d’eˆtre.477 This finally led to an outwardly oriented role where instances of the military’s use in myriads of domestic roles remained commonplace. These domestic roles included tasks of an additional internal security force in support of the police forces but also distinctly shady roles such as a government usurper or a terror organisation. The all-underlying characteristic feature of armed forces thereby is the basic permission granted by the state to conduct warlike acts. Though somewhat formal, this feature is of a fundamental and constitutive nature and can be traced to the theory of just war. However, this authority is limited to an outward impact and considers internal application of violence by armed forces as an exception. It reflects in the categorisation of combatants and non-combatants and had a significant impact on the discussion concerning wars and so-called “new wars”. These new wars are often characterised by a rescission of the former state-owned monopoly of war, as well as a privatisation in political aspects and according to international law. An advancing asymmetry in war turns belligerent parties increasingly into fighters but not necessarily into soldiers, while targets are increasingly of civilian instead of a military nature. As a result, the former clear-cut distinction between combatants and non-combatants is blurred. In the wake of these discussions following the increased deployment of armed forces in PSO and police forces in post-conflict scenarios, this longstanding and specific distinguishing mark of the armed forces has however lost some of its importance. Especially paramilitary police forces and Gendarmeries adopted at least some tasks that were once exclusively assigned to armed forces or that were simply not yet existent. This is due to an expansion of tasks on the part of police forces and a shift in responsibilities on the part of the armed forces. However, it implies for armed forces the principal preservation of their individual permission to conduct warlike acts in relation to other states. Overlaps with tasks of police forces have only developed with a few tasks and can be put down to the changed requirements and challenges of forces deployed in PSO. Today, armed forces of EU member states are deployed all over the world to participate in a variety of peace enforcement, post conflict peace-/state building operations, peacekeeping missions as well as in humanitarian aid operations after catastrophes. Depending on the actual nature of the employment, the soldiers conduct notably varying tasks. Unlike traditional military engagements, these missions usually combine civil and military elements to a larger extend.

476

Carl von Clausewitz “On War” Book VI – Defence, Chapter I. 1, translated by J.J. Graham, London 1873. 477 Larry L. Watts “Whose Professionalism?” supra, p. 6.

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A Comparative Law

This is due to the high rated need to cooperate closely with NGOs and other civil authorities as a prerequisite for a successful mission. Over and above, these consistently multilateral military operations missions – often referred to as non-traditional or post-classic – have increased notably. A swift glance at Germanys political foretime shows a reluctance of the Ministry of Defence to let this perception go and turn to a new chapter in military tasks. Illustrated is this opinion by the unwillingness to accept “new wars” beside traditional coined “classic wars” and the heaviness of the Bundeswehr during its transformation.478 Though the last Defence Policy Guidelines (VPR) dated of 1992, they clearly rendered crisis management as the most important mission instead of the previous orientation to fend off wide-scope aggressions.479 Nevertheless, the following White Paper of 1994 still defined the defence of the territory, air space and coastal waters as the primary mission of the Bundeswehr.480 The present White Paper defines international prevention of conflicts and crisis management as well as the underlying fight against terrorism as the primary tasks of the Bundeswehr. Other major tasks refer to the support to allies, the protection of Germany and its population, rescue and evacuation, partnership and cooperation and subsidiary assistance of the Bundeswehr. Despite the somewhat misleading formulation, the defence of Germany against external threats remains the political and constitutional basis of the Bundeswehr.481 At the bottom-line, the new White Paper does not adopt a distinctly new course. To what extend the perception of war is subjected to change is exemplarily illustrated by the impact of the transnational attacks of Al Kaida. Contrasting the previous development, the emphasis of military operations shifted once again, yet this time to combat operations. This development is still in the process of shifting, manifesting itself in characteristic features that were once attributed to “traditional wars”. Among such characteristics are fights in build-up areas and close quarter battles such as currently experienced in Iraq or southern Afghanistan, which call for other capabilities than “traditional” peace support operations. Earmarked are such robust engagements, e.g. by the need for armoured transporters, yet they are clearly distinguishable from former types of warfare typical for the Cold War where countries relied on military deterrence by maintaining mass armies and nuclear capabilities. In accordance to the later development, a definition by external defence alone is inadequate. Given the lengthy transformation of the armed forces in the face of a need to deploy armed forces abroad, a definition cannot leave foreign assignments out of the picture. Also procurements have been planned to that effect, illustrating 478

August Pradetto “Neue Kriege” Handbuch Milit€ ar und Sozialwissenschaft ed. by Sven Bernhard Gareis, Paul Klein, Wiesbaden 2004, p. 192 et seq. Ministry of Defence, No. 520. 479 Sven Bernhard Gareis “Auslandseins€atze der Bundeswehr” Handbuch Milit€ ar und Sozialwissenschaft ed. by Sven Bernhard Gareis, Paul Klein, Wiesbaden 2004, p. 249 et seq. 480 Ministry of Defence, No. 520. 481 See the White Paper on Defence, Chapter 3.2, p. 56

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the future of military engagements and adding to the picture of today’s armed forces. Yet a possible approach could allocate peace support operations and relevant measures to issues of external defence. Supposed the freedom and interests of states could also be defended in far-off places such as the Hindu Kush, peacekeeping operations would carry at least to some extend external defensive functions. However, such an interpretation would neglect both the original and pristine definition of defensive functions as well as the distinction between internal and external to an intolerable scale. Operations against the cultivation and plantation of opium in Afghanistan could then by all means be declared as measures of internal security, since they aim at a reduction of drug trafficking and consumption within the sending nation.482 Clearly, such interpretation would give rise to unobjective conclusions. In view of these consequences, an allocation of external defensive functions to peace support operations leads to unfunctional results. Whereas a threat to the security of one state was once only arising from the acting of another state, the majority of present conflicts originate rather from a foreign states territory. Globalisation – also in view of external defence – is advancing, internationalisation of defence related issues of states, too. Asymmetrical threats do not aim as much at the physical integrity of a state as they aim at increasingly vulnerable populations and the sensitive infrastructure of modern societies. And since the prohibition of force in terms of the UN Charta does basically not conceive “private violence”, a state – though menaced by transborder threats – may not conduct measures to avert these dangers on foreign territory.483 Thus, precautionary measures such as crisis prevention as a new method to cope with crises are becoming increasingly important to today’s states while the term “external security” can less than before be solely interpreted with reference to defence policy since it more and more pertains to quality of life and guarantee of political and economic stability at a progressive rate.484 In the light of the various missions assigned to the armed forces within the different EU member states such as peace support operations or humanitarian aid operations, a definition of the military by simply returning to the external-defensive functions of the armed forces seems by far too narrow to convince though a defensive character as core of the intrinsic mission of armed forces continues to exist.

482 According to the “Annual Report 2008: the state of drugs problem in Europe”, Afghanistan produces currently 8,200t of the global heroin output, http://www.emcdda.europa.eu/attachements. cfm/att_64227_EN_EMCDDA_AR08_en.pdf, visited May 24th 2010. 483 ¨ ußeren Sicherheit im Wandel: Staatstheoretische Christian Calliess “Die Staatsaufgabe der A Grundlagen und v€olkerrechtliche Konsequenzen”, Neue Sicherheit im Wandel – Neue Herausforderungen an eine alte Staatsaufgabe, Baden-Baden 2005, p. 13–32 (24). 484 ¨ ußeren Sicherheit und grenz€ Annette Bußmann “A uberschreitende staatliche Zusammenarbeit”, Neue Sicherheit im Wandel – Neue Herausforderungen an eine alte Staatsaufgabe, ed. by Christian Calliess, Baden-Baden 2005, p. 83–89 (84).

144

bbb)

A Comparative Law

Means-Based Approach

Examples of the armed forces behaving as the traditional national defender, supplementary force to the police, independent internal security force, partisan political actor, government usurper, and vigilante terror organization coexist in the current world. Given the broad range of observable military behaviour, social scientists were faced with the problem of what to include in a definition of “normal” military functions. While the external-defensive function was deemed too narrow a descriptor, casting the net too broadly risked the inclusion of both “normal” and “pathological” behaviour in the definition.485 Consequently, a conscious attempt was made to define the military by its means employed, resulting in a definition that assigned the management of violence to the military as being their unique specialty.486 This approach has not changed considerably, largely because it strongly coined the impression of the characteristics of armed forces. Succeeding generations of theorists formulated their view of military’s special skills as the application of violence under certain prescribed conditions.487 The attributes of waging war and the maintenance of internal order were generally the emphasis of attempts to define the nature of the military, making it common practice to refer to the military as the ultimate manager of violence.488 It was Harold Lasswell who first introduced the perception of the military’s particular area of expertise being the management of violence, implying that the “function of a military force is successful armed combat”.489 Hereto, the primary functions of the military included tasks requiring the use of coercive force against external threats as well as the maintenance of internal order. Following a proposition of Clausewitz, the modern state can be accounted as a legitimate actor during war. Hand in hand with the lengthy development of the state as a principle, the national monopoly of coercive force or violence evolved, authorising the state – and the state alone – to apply legitimate force.490 In fact, the principle of a monopoly of force is to such extend fundamental, that the German Basic Law presupposes its existence.491 This authorisation became valid both on

485

Larry L. Watts, “Whose Professionalism?: Separating the Institutional Roles of the Military & Police”, Conflict Studies Research Centre, Surrey, England, 2001, p. 3. 486 Harold Lasswell “The Garrison State and Specialists on violence”, American Journal of Sociology, Vol. XLVI (1941), pp 455–468. 487 Samuel P. Huntington, “The Soldier and the State: The Theory and Politics of Civil-Military Relations”, Cambridge, Harvard University Press, 1957, p. 11. 488 Amos Perlmutter; William M. LeoGrande, “The Party in Uniform: Toward a Theory of CivilMilitary Relations in Communist Political Systems”, The American Political Science Review, Vol. 76, No. 4 (1982), p. 782. 489 Samuel P. Huntington, “The Soldier and the State: The Theory and Politics of Civil-Military Relations”, supra, p. 11–18. 490 Somewhat surprisingly, some authors deem it wise that this ideal of a de facto monopoly was never fully achieved, see Martin van Crefeld “Die Zukunft des Krieges”, Munich 1998, p. 281. 491 ¨ ußeren Sicherheit im Wandel: Staatstheoretische Christian Calliess, “Die Staatsaufgabe der A ¨ ußere Sicherheit im Wandel – Neue Grundlagen und v€olkerrechtliche Konsequenzen”, in: A Herausforderungen an eine alte Staatsaufgabe, Baden-Baden 2005, p. 13.

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the interior as well as on the exterior. Non-state actors lost their legitimisation for a use of force, leading to an overall perception of a war being fought between conflicting states.492 Over and above, this perception gave birth to the differentiation of combatants and non-combatants.493 The submission of military actions to the national monopoly of coercive force was precondition for the establishment of international law and provided for a preferred sparing of civilian non-combatants. The use of force should be limited to the politically and militarily guided soldier, calling for thorough training and discipline. At the bottom line, a conventional intergovernmental war paradoxically helps taming and civilising the basic principles of war. War in this sense is regarded as a legal situation from which limitations arise to curtail civilian losses and come along with a certain code of conduct.494 Yet in the aftermath of the end of the cold war, this order has been exposed to distinct pressure and erosion. While the continued globalisation and denationalisation of politics as well as technological transitions and transnational threats caused the disciplinary influence of the previous forces to break up, consequential challenges in regard to security policy emerged.495 However, more non-combatants than before are fighting in present wars. “New War” is the consequential approach to differentiate the present situation to the classic concept of war, foreboding lowintensity-conflicts as the vital challenge to come.496 Adding to the blurring of a precise distinction is the aggrandised participation of local warlords, guerrilla, private security companies and international networks in armed conflicts. Today’s mercenaries are regularly highly professional, excellently equipped and trained and conducive to the obscure situation of armed conflicts. Weapons stockpiles resulting from the arms race of the Cold War era are now being distributed at a very cheap rate, making it easier to engage in armed conflicts than ever before.497 All these factors accumulate to widely diverging interests and influences, reaching its climax where the waging of war turns into a profession of the participants concerned. Today’s belligerent parties live on despoilment and exploitation of the civil population and domestic resources. Thus, war waging helps secure their subsistence and turns into a gainful working life. Using the example of warlords in Afghanistan, the war was supporting their livelihood and sizable income. In fact, the continuous cultivation of opium plantations still acts as a gainful profession. This dependency on war waging to maintain a certain living standard made parties of the conflict reluctant to let a legitimate democratic authority take over. In fact, a precise differentiation between civilians and combatants as well as between members of 492

August Pradetto “Neue Kriege” Handbuch Milit€ ar und Sozialwissenschaft Sven Bernhard Gareis, Paul Klein (eds.), Wiesbaden 2004, p. 192 et seq. Ministry of Defence, No. 520. 493 Martin van Crefeld “Die Zukunft des Krieges”, Munich 1998, p. 282. 494 Martin van Creveld “Die Zukunft des Krieges” Munich 1998, p. 67 et seq. 495 Cathleen Kantner, Sammi Sandawi “Der Nationalstaat und das Milit€ar”supra, p. 45. 496 Martin van Creveld “Die Zukunft des Krieges” Munich 1998, p. 94 ff, 300. 497 Herfried M€unkler “Was ist neu an den neuen Kriegen?” Der Irak-Krieg und die Zukunft Europas, ed. by Helmut K€ onig, p. 106 et seq.

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A Comparative Law

armed forces, police officers and organised criminals is hard to spot. The resultant confounding of traditional profiles and characteristics leads to asymmetric warfare where belligerent actors develop a momentum of their own, abandoning militaryintegrated forms of coercive force. These “new” belligerent actors do intentionally not adhere to the law of the nations; a directly aimed violation of these rules is rather the central element of their military strategy in asymmetric wars, helping them to compensate for their technological shortcomings.498 In this respect, traditional armed forces seem to increasingly lose control over today’s wars. These developments have been significantly labelled as a “denationalised use of coercive force”.499 Accompanied are these proceedings by a characteristic increase of brutality and cruelty, exhibiting parallels to wars of early times where war waging was a matter of common people in contrast to the national wars of the last three decades which were conducted by sovereign nation states in political control of their armed forces and subject to international legal norms. Therefore, designated military forces in many countries are regularly not the only “armed forces” in the true sense of the word. Hence, and unlike in democratically settled countries, no state monopoly in the use of coercive force exists. To these measures, a defining of the military as regular armed forces by the simple provision of the means applied during a conflict seems obviously inadequate. Only adding to the described shortcomings of an application of a means-based definition of the armed forces is the fact, that even among governmental authorities, the military is neither the sole institution specialised in the management of violence and coercive force not the only custodian of the state’s monopoly of legitimate force albeit other security forces such as the police or gendarmerie forces are less militarised in both equipment and behaviour. The adoption of a means-based definition does not only subsume warlords and other non-combatants engaged in an armed conflict but also police forces within the military. Thus, its vagueness renders it impossible to distinguish effectively between these parties.

ccc)

Organisational Structure: Top-Down

Police and armed forces may however be distinguished from each other by their individual form of organisation. Concerning the armed forces, the very high degree of centralisation derives from their task to threaten and to apply focused force on a strategic level. Such a centralisation during more robust peace-enforcement operations might turn out as a functional approach to ensure internal control and coordinated action in a phase of unstableness. Peacekeeping missions include the risk of “mesoviolence” while they require at the same time a broad regional distribution 498

Cathleen Kantner, Sammi Sandawi “Der Nationalstaat und das Milit€ar” Milit€ arsoziologie – Eine Einf€ uhrung, ed. by Nina Leonhard and Ines-Jaqueline Werkner, p. 45. 499 August Pradetto “Neue Kriege” Handbuch Milit€ ar und Sozialwissenschaft ed. by Sven Bernhard Gareis and Paul Klein, p. 194.

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and soon show dysfunctions of the typical top-down organisation of armed forces.500 Upcoming difficulties are consequent on the new tasks that come to the fore: non-combatant tasks and civil-military cooperation call for a decentralisation of competence, information, and resources. Other tasks such as disarmament, demilitarisation, safeguarding of ethnical minorities, patrolling as well as training and supervision of newly established local police forces likewise require the activity of small groups instead of one centralised body. The design of command structures needs to fit the complexity of tasks “on the spot”. In the light of these changed requirements, local commanders are bound to develop initiatives of their own as well as the ability for individual and considered decision-making. However, military socialisation and training aim at a highly formalised attitude of the soldiers, deriving from the original need to create predictable and standardised pattern of behaviour. On the occasion of a situation that calls for innovative and creative actions on the basis of autonomous responsibility of the soldiers, regimentation and formalisation turn out as an inexpedient approach since soldiers tend to await orders instead of reacting independently and spontaneously. Particularly PSOs have proven to be a rather unstructured environment with participating forces of different countries as well as NGOs and local authorities. Even though it retains many typical military characteristics it requires a higher degree of flexibility in deployment and reaction to crises. At the bottom line, the complexity of tasks calls for flexibility and freedom of action, which cannot be offered by a rigid military top-down principle. In fact, the complexity “on the spot” makes the rather long and inflexible military chain of command obsolete or simply impedimental. But whether or not armed forces require some additional flexibility to fit their changed tasks during foreign assignments, other forces follow the same organisational structure. It is not only the military that follows a pattern of strict top-down organisation and a clear chain of command. Several gendarmeries and paramilitary units follow such a pattern while some units even adopted military ranks and grades though they are not affiliated to the armed forces or the ministry of defence. Thus, the approach to define armed forces by their organisational structure is according to these findings doubtful at best.

ddd)

Legal Accountability

Another distinguishing mark between the military and the police forces is their personnel’s accountability before the law. Members of the military operate within the scope of their responsibility according to a separate set of law pertaining to war and its prosecution. Infringements of these laws or of military regulations are regularly judged in a special military court. This can be justified by the special status and the underlying special protection of the military personnel in return for 500 The term “mesoviolence” has been coined by Karl W. Haltiner “Polizisten oder Soldaten? ¨ MZ 3/2001, p. 291–298 Organisatorische Dilemmata bei der Konstabulisierung des Milit€ars” O (295).

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their voluntary renunciation of certain civil rights. However, the principle of a special “Wehrgerichtsbarkeit” is not upheld throughout Europe. Germany for instance decided to leave the competence for such issues with the system of ordinary courts and – as a consequence – finds itself confronted with the question of how to assure criminal prosecution of soldiers deployed on foreign assignments. The Bundeswehr for instance recourses to legal advisors in their investigations of incidents during foreign assignments. These staff officers are however not assigned the same authorities as the public prosecution department. Relevant proposals concerning an adaptation of the German Code on Court Constitution are currently discussed.501 Members of the German Armed Forces are however subjected to the civilian justice while special courts (“Truppendienstgerichte”) are charged with the enforcement of the military disciplinary code (“Wehrdisziplinarordnung”) and the military code of appeals (“Wehrbeschwerdeordnung”). Despite these matters, neither a coherent nor a comprehensive approach to military accountability before the law can be identified within Europe. In addition, also police officers are subjected to a specific disciplinary code. At the bottom-line, the mere existence of military jurisdiction and regulations may not provide for an effective differentiation between police and military forces.

eee)

Military and Police Ethos

Trying to establish a clear demarcation between armed forces and police forces, the latter were often defined as an organisation, whose function was to regulate interpersonal relations via the administration of coercion. This approach derived from the perception of modern police organisations being the result of an attempt to rationalise social control. Again, these interpretations were subjected to certain criticism since some of the missions of the police forces are not related to an administration of coercion, e.g. the distribution of emergency aid. And even beyond that, social activities are not solely regulated by police forces but also by various other institutions such as legal bodies.502 Other scholars like Bayley offered a slightly different approach to distinguish the police forces by classifying them as “an organisation authorised by a collectivity to regulate social relations within itself by utilising, if need be, physical force”.503 Taking the same line, Bittner refers to the police as “a mechanism for the distribution of situationally justified force in society” in order to distinguish the police from other instruments of social control.504 Both 501

See the proposal Drs. 16/673 of February 15th 2006 in the German Bundestag. Arthur Costa, Mateus Medeiros “Police demilitarisation: Cops, Soldiers and Democracy”, Conflict, Security & Development 2:2 2002, p. 25–45 (27). 503 David H. Bayley and Tilly, C. (ed.), “The Police and Political Development in Europe”, The Formation of National States in Western Europe, Princeton University Press, Princeton 1975, p. 328. 504 Egon Bittner, The Functions of the Police in Modern Society: A Review of Background Factors, Current Practices, and Possible Role Models, US Government Printing Office, Washington DC 1970, p. 44. 502

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approaches lack however the presentation of the difference between police and the military. Bayley spots the distinction in the kind of situation in which they are deployed: while armed forces are dispatched exceptionally and – in democratic societies – within established limits, the police forces are deployed on a daily basis.505 Though this single quality alone cannot mark a reliable distinction between the two security forces since more soldiers than ever before are deployed on peacekeeping missions worldwide on a daily basis, one real and undisputable difference between the police and the armed forces lies in their need to control the use of force, calling for democratic mechanisms to control and account all forms of state activity. As basic principle, the armed forces always accentuated the efficiency and effectiveness of their actions compared to the degree of force applied. Efficiency marks the balance between means applied and results obtained. Thus, the consequential aim is to project the maximum possible force while employing the minimum means necessary. Contrary to efficiency, military effectiveness denotes an application of force to complete a military objective, normally compelling the opponent into submission. Police forces have a distinctly different approach to the control and relation of force towards results. In the perception of police forces in a democratic society, efficiency is replaced by relativity. Thus, force has to be applied in proportion to a threat, causing many police departments to limit the use of firearms to an unavoidable minimum, mostly where essential values – such as human life – are endangered. Basically, police forces are bound to employ a minimum amount of force, even though this approach requires greater means in respect of more personnel and more expensive equipment.506 It is quite obvious, that this concept runs the risk of conflicting with military notions. The same holds true for the criterion of effectiveness. Though both institutions interact with citizens and have well-defined objectives, the military must overcome an opponent whereas the police are held responsible for guaranteeing the smooth functioning of social life. According to Costa/Medeiros, armies exercise power while police forces exercise authority.507 This contradistinction arises from the specific nature of the police ethos, requiring the use of force to be legitimate by those against whom it may be employed.508 A question of vital importance to distinguish armed forces and police forces is the way of how coercive force is deployed. Bearing in mind the military approach towards efficiency and effectiveness of a deployment of force, a precise control of such force is not their primary concern. Even military frameworks such as deployment strategies, military law, RoE, or training procedures do not convey the need to control the use of force deployed in the first place. For police forces, this control of 505

Bayley p. 328. Arthur Costa, Mateus Medeiros “Police demilitarisation: Cops, Soldiers and Democracy”, Conflict, Security & Development 2:2 2002, p. 25–45 (28). 507 Arthur Costa, Mateus Medeiros, supra, p. 28. 508 When speaking of ethos, differences in the specific and characteristic spirit and belief of a community or an organisation are referred to, see Arthur Costa, Mateus Medeiros, supra, p. 28 et seq. 506

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force is the very reason, which makes them consistent to democratic societies. This perception does not run counter to facts of life since numerous democratic societies established police organisations with a distinctive military structure or military attributes under the designation “Gendarmerie”. These forces in question – such as established by France, Italy or Spain – have remained within a democratic frame and differentiated themselves from the armed forces despite their (partial) military status. On the other hand, also civilian police forces with no linking to the military may have no control over the use of force, thus bringing about a military ethos despite their civilian nature. At the bottom-line, the differentiation of military and police ethos lies in the perception of effectiveness and efficiency in relation to the use of force as well as in the degree of self-containedness of both forces. Thus, the ethos of the different forces and their self-conception represent vital details of a viable definition and differentiation of security forces. Nonetheless, a definition of armed forces solely based on the specific ethos seems inaptly. Though the differentiation between the exercise of power on the one hand and of authority on the other seems comprehensible, it is only an additional distinctive feature of the security forces. And it becomes worthless in cases where police forces adopt a military ethos and turn their back on the “typical” police behaviour of controlling the use of force. Since relevant examples are abundant, for instance in South America, the ethos of the forces may be a prominent feature but does proves inexpedient as a reasonable distinction towards other services.509

fff)

Characteristic Dilemmata

Another possibility could be the definition of the armed forces by their characteristic dilemmata. According to Finer, the army is a purposive instrument with highly peculiar features and rationally perceived to fulfil certain objectives. The central purpose of waging wars entails likewise central features: Centralised command, hierarchy, discipline, intercommunication, esprit de corps and a corresponding isolation and self-sufficiency.510 These central, yet unique features implicate a number of dilemmata as illustrated by Haltiner that exist in an application of armed forces in peace-support operations.511

1)

Force

According to this, one major dilemma is the dilemma of force since traditional military organisations are construed for applying focused force on the macro-level. 509

See http://www.guardian.co.uk/brazil/story/0,,2114658,00.html, visited May 24th 2010. Samuel Edward Finer “The Man on Horseback – The Role of the Military in Politics” New York 1962, p. 7. 511 Karl W. Haltiner “Polizisten oder Soldaten? Organisatorische Dilemmata bei der Konstabuli¨ MZ 3/2001, p. 291–298 (294). sierung des Milit€ars”, O 510

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Peace-support operations however bear inherent risks in the application of force on the macro-, meso-, and micro-level: the recourse to macro-force during peace operations occurs only in exceptional cases.512 In contrast, daily routine of PSOs comprises mostly low-intensity conflicts typical for police work. Consequential problems arise from the tendency of armed forces to fall back upon focused application of force if the means required are at hand. The suppression of armed and even more of unarmed conflicts are delicate tasks that require a change of attitude towards the use of force of the soldiers deployed. On the other hand, an undue constraint from the use of force may lead to likewise devastating outcomes.513 Another major concern regards the distribution of risks between various units deployed within one peace-support operation. Though the application of focused force might be conducive to a restoration of peace and order in one situation, it might increase the risk of other units of the same peacekeeping force. As a consequence, a differentiating division of labour between peacekeepers and heavily armed peace-enforcers within one operation appears impracticable. The attitude towards the use of force needs to be consistent within the contributing forces of such operation. Additional difficulties may arise from the danger of peacekeeping forces being pushed into an occupational role. This might be generated by complex interventions requiring the use of force in a civilian environment. In the worst case, the use of coercive force will achieve just the opposite. Parallel, the perception of the peacekeeping forces and their impartiality might change into a perception of the forces as a player instead of an arbitrator. In the wake of this development, the peacekeeping forces are likely to lose their support of the local population, putting the whole operation at risk.

2)

Centralisation

Military command is centralised, though in practice, much is delegated to units in the field. Thus, a continuous chain of command derives from the basic objective of the army and links the very lowest echelons with the supreme H.Q.514 As depicted above, the armed forces developed a high degree of centralisation due to their tasks requiring internal control and coordinated acting under unstable circumstances. While robust operations certainly benefit from this military nature, peacekeeping operations regularly require a different structure. It lies within the nature of peacekeeping missions that a spacious distribution of forces is essential for a successful operation. In this regard, the strict Top-Down organisation of armed 512 Among such exceptional cases is the initial phase of the NATO Operation prior to the Dayton Agreement 1995 or the War in Kosovo 1999. 513 Haltiner refers to the cases of Srebrenica in 1995 or Sierra Leone in 2000. 514 Samuel Edward Finer “The Man on Horseback – The Role of the Military in Politics” New York 1962, p. 7.

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forces proves itself inadequate to cope with scenarios like demilitarisation, safeguarding of ethnic minorities or patrolling being characteristic for peacekeeping operations. In addition, the form of organisation of the armed forces does not foster flexibility or initiative of the on-scene commander. Due to the specific exposure to danger and the pressing for time, which the armed forces are typically subjected to, military socialisation and training aim at a highly formalised behaviour instead of informal, adequate and flexible actions needed in the face of the highly complex tasks of peacekeeping. The chain of command and the distinct military allocation of responsibility only add to the deficient performance of military personnel as far as police related tasks of a typical peace-support operation are concerned. It is the lower ranks that – in everyday practice – are more likely to get in touch with the local population through their interpreters and on the occasion of patrols. As a direct consequence, the body of officers tend to lose their leadership competence for a mere coordination competence while lower ranks find themselves bearing responsibility which they were neither trained nor paid for.

3)

Castellation and Formalisation

Armed forces are regularly housed in isolated places without a direct contact to the population. Though this castellation has been reduced to some extend during the last decades, the small degree of social contact of members of the armed forces compared to that of police officers is obvious. This separating from the surrounding society is a distinct feature of the armed forces. Moving cause for this behaviour is the attempt to remain unaffected by uprisings and civil strife to the greatest possible extend. The attempts of the armed forces to create a high degree of formalisation within their members take the same line. The fostering of a shared identity and communal spirit underlines the approach to remain isolated and “outside” the normal population. Both qualities were solely meant to increase the self-containedness and independence from the residual society, aiming at nothing less than the establishment of a society within the society. A high degree of isolation implied a high degree of effectiveness and political neutrality, two vital features of political leaderships fearing a political change. As experience shows, a high degree of castellation does not inevitably lead to political neutrality: it was the characteristic feature of social isolation and subsequent cohesion that led to several military coups d’e´tat since forces with a high degree of social coherence tend to follow their leaders even in case of revolutionary subversion. Police forces perceive their embeddedness in community as an essential characteristic of policing. In contrast to the armed forces, police forces are much more dependent on the cooperation of society while performing their tasks, rendering close contact to the population a prerequisite for successful policing. Experience, e.g. in Belgium or Ireland shows the advantages of close relationships between a society and police forces, resulting in increased respect towards the officers if they derive from the midst of community. Choosing a domicile within the residual

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population to obtain a personal relationship between the officer and the population is thus a matter of course for police officers in most countries. Armed forces however fear such a close tie to society and the effects it could have on their self-containedness and combat readiness. Close ties of the military with the community lead almost unavoidably to political involvements and thus to a detriment in effectiveness. Though the degree of isolation of the armed forces is nowadays not as high as it use to be, e.g. during the Empire, military forces still distinguish themselves from police forces by their relation to the population. At the bottom-line, all above-mentioned characteristic dilemmata are intrinsic features of the armed forces and are based on the specific qualities of the military and depict the forces well. However, the mere existence of such dilemmata is inadequate to properly define the armed forces and to delimit their scope of responsibility of that of the police forces since the dilemmata only arise from the central features of the armed forces.

ggg)

Norm-Derivative Approach

Although early attempts of a norm-derivative definition of armed forces foundered on the problem that no useful determination of “normal” military tasks could be established due to the danger of incorporating both normal and pathological tasks such as conquest, plunder and revenge, some of today’s approaches revert to a norm-derivative approach. Especially early attempts to establish means-based definitions of the instruments of state coercion added to a growing complexity and ambiguity as far as an accurate definition of the institutions concerns. Though this definition was earlier considered as offering a more accurate way of characterising, it exhibited a lack of clarity in understanding the converging roles of various security forces. Considerable proposals suggest an adoption of a norm-derivative definition today.515 According to these, the military remains the instrument of state coercion designed to defend a nation against external threats through the management of lethal violence while the essential political neutrality of the military needs to be maintained by concentrating on this limited role. This normative approach appears to be a very efficient and comprehensive way to define the armed forces for it incorporates the macrocosm of military qualities: At first glance, the ultimate and sovereign mission of the military still is the management of lethal violence and force, thus implying vital factors of a means-based approach. It also incorporates the strategic purpose of armed forces, in particular the defence of the nation, embracing topics of an external-defensive approach. In the meanwhile, it does not neglect the important factor of political neutrality to meet the requirements of a democratic society.

515

Cf: Larry L. Watts, Whose Professionalism?: Separating the Institutional Roles of the Military & Police, Conflict Studies Research Centre, 2001, p. 12.

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This approach may however entail some problematic issues in the context of peacekeeping and – enforcement operations conducted by armed forces. These issues originate from the present modification of tasks of the armed forces where national defence does no longer imply a defence within the national territory or along its borders. The main areas of operation of European armed forces are no longer located in Europe but in Africa, Asia or along Europe’s eastern borders instead. Foreign assignments far beyond the national territory such as PSOs have become commonplace and contributed to a modern self-conception of the military. And as a matter of course, today’s governments accepted and furthered this principal change of the armed forces´ mission.516 Thus, national defence in a modern sense is inextricably linked with foreign deployments. Therefore, national defence as set forth in a norm-derivative approach should expediently comprise present tasks of armed forces, even if these tasks are fulfilled outside the national territory. Proponents of the norm-derivative approach again highlight the maintenance of political neutrality of military forces that are employed beyond the national territory. That such separation of forces is somewhat challenging to maintain during a foreign assignment is obvious. If and how foreign deployments may be carried out without detriment to the democratic development of the local society will be discussed later. At the bottom-line, a norm-derivative approach seems suitable to define the nature of armed forces though it lacks some aspects of the attitude of armed forces. These attitudes are however resembled in other concepts, e.g. by distinguishing the forces by ethos.

hhh)

Preliminary Finding: Norm-Derivative with a Twist

As pointed out above, several approaches have been developed to define the military force and to point out its distinctions compared to police forces. The idea to define the military by its external defensive functions appears too narrow to convince since the former principal mission of the armed forces has nowadays been extended to international peace-support operations. And indeed, a major part of the military forces is continuously bound in foreign assignments today. A different concept trying to define the military by its means applied lacks the clarity to distinguish between soldiers and partisan fighters. In addition, also police forces (or at least some special forces of the police) apply comparable means, yet in a different setting. Attempts to define the military by its organisational structure are also not convincing. It is not only the military that adopted strictly top-down structures. Most Gendarmeries and paramilitary forces follow this concept; some assumed even military ranks within their institution. Regarding the legal accountability of the military as the distinguishing mark is also misleading since no 516 See the appeal to counter crises and conflicts where they arise to keep their negative effects from Europe, Minister of Defence, Franz Josef Jung at the 23rd International Workshop on Global Security, Berlin, May 18th 2006.

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coherent and comparable codification of military justice exists. In addition, the mere existence of military jurisdiction and regulations may not provide for a useful differentiation between police and military forces. The approach to differentiate the military from the police force by focussing on the ethos of both institutions seems on the first glance quite convincing. It is specifically the way how coercive force is deployed, their perception of effectiveness and efficiency in relation to the use of force as well as in the degree of selfcontainedness of both forces. The mission of the armed forces differs from that of police forces for example in the existence of a principal prohibition of killing, reflecting the underlying orientation to a protection of people. Police forces are also subjected to the maxim of damage limitation and especially to a de-escalating character of intervention. Though armed forces are also subjected to a proportionality principle, they also act under the principle of military necessity, which stands in marked contrast to the principles of police forces. According to that, the use of force has to be justified, provided for by law, and admitted to achieve the war aim. This war aim is the absolute and quickest possible submission of the enemy with minimum human, tangible, and financial casualties. The weakness of this approach lies in its single-sidedness by building only on the identity and attitude of the forces. Examples of police forces exceeding above-mentioned principles are abundant. Yet the concentration on the attitude of the forces may gain in importance in modern asymmetric conflicts since warlords and other irregular fighters raised their armament standard almost to that of regular armies. In addition, many irregular fighters adopted similar training and means to attain their objectives. And in most cases, these objectives are perceived as being of a defensive origin, aiming at the defence or violent implementation of a territorial allocation, prevalence of a religion, propagation of a political conception et cetera. Therefore, an intermixture of different definitions is particularly suitable to involve factors of ethos as well as normative aspects. Beside their specific ethos – deeply coined by the principle of military necessity – the armed forces remain the instrument of state coercion designed to defend a nation against external threats through the management of lethal violence, both within the national territory and during foreign assignments. The combination of ethos and a normative approach – which in turn comprises various formal factors – is a profound and concise way to define the armed forces.

bb)

Defining the Mission

According to the aforementioned definition of armed forces, the ultimate and sovereign mission of the military still is the management of lethal violence and force, implying vital factors of an ethos- and norm-derivative approach. Moreover, this description incorporates the strategic purpose of armed forces, in particular the defence of the nation, and embraces topics of an external-defensive approach that still characterises several aspects of present military missions. It goes without saying however, that not only defence-related operations are rendered

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constitutional today. In this aspect, a certain change in the understanding of what armed forces and what their functions are in a modern society can be witnessed. While ancient regimes established armed forces with the sole purpose of conquering and defend themselves from being conquered, later governments soon recognised the value of local security and stability. This implied the advancing constitution of alliances whereupon the army’s main purpose of projecting aggression faded from the background, clearing the way for a more defence-related mission of the military. Especially after the two World Wars, most war-shaken European countries turned their back on military aggression. During this period, some countries (such as Germany) renounced belligerence in toto due to the experiences and sufferings of the anterior decades. Accordingly precautious and timid were the first movements towards rearmament and the readiness of society to accept and support a new establishment of armed forces. Likewise resolutely were protest movements against all kind of exertion of military influence. Other European countries watched suspiciously over these developments, fearing an anew outbreak of aggression and offensive military actions in Central Europe despite existing disarmament obligations. In this period of gaining credence and building confidence, one of the major instruments was the implementation of forces in jointly executed operations, be it humanitarian aid after natural catastrophes or peacekeeping missions after armed conflicts. By concentrating on humanitarian operations and the promulgation of peace in other war-torn countries, deep-seated doubts of the population could to a large extend be resolved. Today, Germany has participated in a number of joint operations abroad and gained satisfactory validation on the part of the majority of society. Despite these developments, the historical perception of the mission of armed forces was not entirely altered. From a historical point of view, the mission of armed forces could always be roughly divided into two main tasks “offence” and “defence”. Generally speaking, the term “offence” subsumes all kinds of aggression that spring from a country with the purpose of conquering or occupying, thus aiming at territorial expansion or a general economic advantage. In contrast to this active quality of the “attack” column is the less aggressive “defence” task. Major perspective of this is rather self-defence than attack. That does not necessarily imply that a nation defending itself refrains from the use of force or means of countering the aggression but solely – and somewhat aesthetically – that it is not driven by the motive to enrich itself. These deliberations are to some extend affirmed by von Clausewitz: “What is defence in conception? The warding off a blow. (. . .) What is the object of defence? To preserve. (. . .) It has been already observed in a general way that the defensive is easier than the offensive; but as the defensive has a negative object, that of preserving, and the offensive a positive object, that of conquering, as the latter increases our own means of carrying war, but the preserving does not, therefore in order to express ourselves distinctly, we must say, that the defensive form of war is the in itself stronger than the offensive”.517

517

Carl von Clausewitz “On War” Book VI – Defence Chapter I. 1. and 2, translated by J.J. Graham, London 1873.

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Though depicted in a rather overly simplified manner, one important quality of the armed force’s nature can be clarified: While the aggressive “offence” resources together with the objection to expand clearly dominated in medieval times, the purpose of “defence” by means of peacekeeping and other humanitarian aims prevails in democratic states of today. Nevertheless, a clear borderline between these two spheres is again almost impossible to draw. Armed forces may also today be deployed under the pretext of pursuing defensive objectives, in reality however enforcing own interests. Such interests may comprise economic but also political aspects and may in times of globalisation well lie outside the national territory, thus putting the preservation of own positions centre stage. To this respect, the differentiation of “defence” and “offence” as concluded by von Clausewitz is continuously blurred. Since the remit of armed forces in Europe changed clearly and constantly during the last decades, the operations that are permissible under the particular constitution changed equally. Several assignments can be identified as typical for today’s forces. Though the defence of the nation still is one of the principal tasks it is now completed by other tasks. Some of those typical missions of European armed forces of today are humanitarian aid missions at home or abroad, partly in cooperation with civilian aid organisations or NGOs, while other missions of the armed forces comprise the cooperation with other governmental organisations or authorities, missions in the context of states of emergency or natural catastrophes at home as well as the evacuation of state’s nationals. aaa)

Defence of the National Territory

First and foremost mission of the armed forces is the defence of the national territory against external threats. This primary mission evolved from the universal need to guarantee the own existence and to prevail against external foes and their striving for expansion. As stated beforehand, the military was then essentially assigned the defence of the broader all-inclusive community as its principal raison d’eˆtre with the creation of the nation-state in the eighteenth century.518 Due to later developments, the perception of one sole primary mission changed to a variety of tasks among which the defence of the nation in its traditional sense became less importance attached to than before. bbb)

Crisis Management

After the end of the Cold war, the number of non-traditional operations of the armed forces increased significantly. Most of these operations abroad require highly specialised and mobile units, many of which are composed of volunteers. Such international stabilising operations are turning into a structural decisive mission. It is thus a common belief that only state-of-the-art and highly professional armed 518

Larry L. Watts “Whose Professionalism?” supra, p. 6.

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forces are capable of performing successful missions abroad. Traditionally equipped and structured mass armies however are focused on the traditional task of defending the national territory against external threats. Most modern armies of today adjusted their structure according to the new tasks: US, British and French forces are being deployed worldwide and find it hard to adapt to conscript armies during peace support operations.519 Yet the nature of foreign assignments underwent a constant change. Whereas the first missions were mostly coined by humanitarian and reconstructing characteristics, latest developments point again to a change as can be witnessed in Iraq or Afghanistan. Operations that started out as reconstruction and stabilising missions turned to heavily armed combat operations. Though this evolution exhibits many earmarks of a pendulum swing-like development, an outlook to a reintroduction of mass armies is quite unlikely. However, this evolution rings in the next step of a dynamic shift in military tasks. Future missions will take place in far-off places as well as right on the doorstep, requiring heavily armed and highly specialised forces to enforce and implement stabilising measures. Most probably, the borderline between civil and military missions will continuously obliterate since certain stabilising tasks may from some point on be taken over by civilian authorities. At the bottom line, times in which military forces were held ready within the national territory with the sole purpose of defending this nation are over. The area of responsibility of the forces has been immensely stretched, their tasks extended and the structures transformed. Armed forces proved once again their versatile character and their capability to adapt as an indicator of changing requirements. ccc)

Humanitarian Missions

While crisis management abroad is regularly a mission with the involvement of armed conflicts, humanitarian missions are commonly referred to as being “the lesser form of crisis management”.520 One of the distinct characteristics of humanitarian missions is the principal absence of the use of force. Hence, the operations regularly require an agreement of the consenting states involved. Generally, humanitarian operations aim at victims of large-scale disasters and crimes by providing relief in most diverse ways independently of ethnic, religious or political affiliations. Cornerstones of humanitarian aid are thus the neutrality, impartiality and independence of the measures applied. Due to the political implications of any deployment of armed forces, the military is not regarded as a legitimate humanitarian actor in a strict sense. However, experiences show that linking military aims to humanitarian aims may lead to grave problems, especially when it comes to armed conflicts in the area of responsibility. Adding to the 519

Tibor Szvircsev Tresch “Europas Streitkr€afte im Wandel: Von der Wehrpflichtarmee zur Freiwilligenstreitkraft. Eine empirische Untersuchung europ€aischer Streitkr€afte 1975 bis 2003”, Dissertation Z€urich 2005, p. 81. 520 Georg Nolte, Heike Krieger “Comparison of European Military Law Systems”, in European Military Law Systems, p. 42.

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confusion caused by the increase of military involvement in humanitarian aid operations is the increase of conflict parties targeting aid organisations in their struggle. Military humanitarian operations are not only conducted on UN level but also on NATO and EU level.521 Resembling on some parts the principle of the NRF, the EU established their own Rapid Reaction Forces. These developments led to at the bottom-line to a major reorientation of the armed forces and subsequently to the implementation of new concepts such as CIMIC to effectively link armed forces to humanitarian aid operations and to define dividing lines between the two. The call for a strict inapplicability of armed forces in humanitarian aid operations seems however doubtful, especially if regarded against the background of existing alternatives: Police forces are not only likewise but much more politicised while NGOs often lack the organisational structure, means and personnel to respond to largescale crises. Though also the question concerning the maintenance of a strict separation between armed forces and humanitarian aid organisations may require some sober deliberations, this review will not go into detail in this respect.522 At the bottom-line, the designation “humanitarian aid” is obviously – in a strict sense – inapplicable to tasks that are performed by armed force, regardless of underlying intentions. And even though the “Defence Policy Guidelines” and the present White Paper of the German Government both use the term humanitarian operations to describe and define the scope of responsibility of the Bundeswehr, the intended operations may well be subsumed under the term of general crisis management abroad.

ddd)

States of Emergency

A government responds to an extraordinary situation that poses a fundamental threat to the country by declaring a state of emergency.523 This declaration usually results in certain impacts on the functions of a state and its government. Some of these functions may be suspended, emergency plans may be implemented while civil liberties and human rights may be somewhat limited. While the former connotes a mere change in procedure to ensure a smooth and simplified functioning of the state during a crisis, the latter poses a distinct and profound invasion into individual rights. Reasons of a state of emergency are manifold: armed attacks both from the inside and outside, civil unrest, natural catastrophes or epidemics but also financial 521 Especially NATO became increasingly involved in humanitarian operations in the early 1990s within the scope of IFOR, SFOR, KFOR and “Operation Fox” in Macedonia. Despite the prominent role of NATO in such operations, the increasing unilateralism of the USA kept NATO from playing a similar role in Afghanistan and Iraq. 522 Cf. VENRO Position Paper “Armed Forces as Humanitarian Aid Workers? Scope and Limits of Co-operation between Aid Organisations and Armed Forces in Humanitarian Aid”, see http:// www.venro.org/fileadmin/Publikationen/Einzelveroeffentlichungen/Humanitaere_Hilfe/Position %20Paper%20Armed%20Forces%20and%20Humanitarian%20A.PDF, visited May 24th 2010. 523 “States of Emergency”, DCAF Backgrounder, October 2005.

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or economic crises or a general strike may cause grounds for a declaration of a state of emergency. Though rather a feature of countries under a dictatorial leadership, a state of emergency may also connote the declaration of martial law, thus adding to the authority of the armed forces. Key components of a state of emergency are the legal framework representing the legislative basis for the declaration of a state of emergency and the operational framework, encompassing structural and strategic plans. Most states developed a legal provision to regulate a declaration of a state of emergency. Provided that the executive declares the state of emergency, it is either obliged to inform parliament within a certain period of time or have its decision ratified by parliament before being authorised to implement further derogations. In some states such as Hungary however, the parliament itself declares a state of emergency. A constant threat deriving from a state of emergency is a government taking advantage of restricted civil or political activities to extend their influence by neutralising political opposition or postpone elections. On the other hand it is inevitable to prescribe limitations in the exercise of certain liberties. In lieu of a consideration of both interests, various essential principles need to be respected.524 One of the most important issues is the question of exceptionality. The declaration of a state of emergency must have a temporal character for it remains an exceptional case. Besides, the impending threat must be a real, current or imminent danger to society. Countermeasures need to be proportional to the impending threat in both regional application and material content. It also must be proclaimed officially and publicly to prevent a de facto state of emergency. To ensure international observation, the government declaring a state of emergency is obliged to inform relevant treaty-monitoring bodies or other states. The key aspects legality and intangibility forbid a suspension of the rule of law and a disregard of the fundamental principles from which there can be no derogation.525 Such fundamental rights include the right to life, the prohibition of torture and slavery, freedom from post facto legislation, the right to recognition before law and the freedom of thought, conscience and religion.526 Powers that may be proclaimed during a state of emergency are defined by virtue of the particular constitution or statutory law. Though there are certain variations within the individual states and the special emergency powers they grant, the

524 Though most countries define their own provisions, international treaties such as the European Convention on Human Rights ECHR, see http://www.hri.org/docs/ECHR50.html, and the International Covenant in Civil and Political Rights ICCPR, see http://www2.ohchr.org/english/law/ pdf/ccpr.pdf, (all visited May 24th 2010) prescribe various basic principles. 525 Cf. “States of Emergency”, DCAF Backgrounder, October 2005. 526 This enumeration is not final, since the UN Human Rights Committee recognised additional non-derogable rights such as the humane treatment of all persons deprived of liberty; prohibition of hostage-taking and unacknowledged incarceration; protection of rights of minorities; prohibition of propaganda advocating war or national, racial, or religious hatred; procedural guarantees and safeguards to ensure the judicial system, see “States of Emergency”, DCAF Backgrounder, October 2005.

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domestic deployment of armed forces is one. Others are the restriction of press freedom, the prohibition of public meetings, evacuation of citizens from their homes, searches without warrant or arrests without charges, confiscation of private property, regulations of the operations of private enterprise, or the interference with financial transactions and export regulations. And though the UK allows for a set-up of special judicial bodies, the German constitution does not allow a recourse to such bodies. Most regulations have in common that the responsibility for government remains with civilian authorities on a national level. They are merely assisted by security forces in a subsidiary role.527 Given the subtle danger of governments to abuse the instrument of a state of emergency and seize power beyond the original purpose, several mechanisms have proven their effectiveness against this threat. Since most legal systems share responsibility between the executive and the parliament, one of the major instruments against such an abuse of emergency powers is the parliament and its requirement of a ratification or approval. Thus, governments whishing to declare a state of emergency, need to bring forward a well-considered justification covering both their decision to declare a state of emergency and the scope of measures to be taken to overcome the situation. As a general rule, most parliaments have the right to review the state of emergency and even suspend it as necessary. Key aspect of the monitoring instruments is the post hoc accountability power of the parliament, granting the right to conduct inquiries and investigations on the implementation and execution of emergency powers, enabling the parliament to evaluate government behaviour. But not only the parliament acts as an instrument against an abuse of emergency powers, also the judicial system must ensure a right to fair trial. Likewise, the cooperation with civil society plays a major role during a state of emergency. Abuses or unwarranted limitations of human rights will clearly undermine the cooperation of citizens with the authorities, making it more difficult to cope with the situation. And also neighbouring states may contribute to a monitoring of a state of emergency. Due to the impact of a declaration of a state of emergency on the relations between neighbouring countries and the international community, all states should have an interest in the government observing the limitations, the proceeding in accordance with international norms and a swift restoration of the constitutional order.528

eee)

Natural Catastrophes

Typical tasks performed by the armed forces within the framework of natural catastrophes are the supply of material and service needed in the specific situation. Among such supplies are the provisions of manpower, communications, power and food supply, the filling and distribution of sand sacks, debris removal, but also tasks 527

“States of Emergency”, DCAF Backgrounder, October 2005. “States of Emergency”, DCAF Backgrounder, October 2005.

528

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A Comparative Law

that seem at first glance somewhat at odds with the original mission of the armed forces like the collection of dead birds during avian influenza. All European armed forces share the basic principle of rendering assistance to the threatened society and experiences show that all governments look to their military forces for emergency help and relief. Though some countries stipulate a possible assignment of such supportive tasks in the constitution, others provide for single acts or regulations to cover extend and requirements to deploy armed forces within the national territory or abroad. National civilian emergency services are mainly scaled to cope with day-to-day incidents and do not sustain to catastrophes of exceptional magnitude. Since the breakdown of infrastructure is a typical side effect of natural catastrophes, military means such as helicopters, off-road vehicles and specialist manpower gain in relevance. In the light of these aspects, the military task of providing assistance in cases of natural catastrophes should not be underrated, though most legal systems consider a military response to natural disasters an additional benefit rather than a primary task.

cc)

Preliminary Findings

In contrast to other security forces, armed forces have developed a specialisation on the field of threat and application of collective force. This application of “hardpower” aims at external groups and requires a proactive operational strategy based on detailed planning. The application of focused and coercive force calls for a clearly structured chain of command, organised according to the principle of centralism. The chain of command and the consequential structure ensure that the central bodies engaged in planning and the decision-making processes have constant control over the events. Relevant information is supplied from a higher level, minimising competences of the individual soldiers. Adding to the minimising of competence is the typical specialisation of the soldiers concerning division of labour: multifunctional characteristics within the soldiers are scarcely needed. Given the regularly insecure and instable environment, strict control and tight internal organisation serve the purpose of compensating for this incalculable external situation. The deriving high degrees of formalisation, regimentation and standardisation are to guarantee a calculable and coordinated performance in the face of excessive stress and even loss of entire parts of the organisation. Another aspect of the moderate coupling to the social environment might be the intense internal orientation of the armed forces, due to their traditional and institutional separation from civilian life. Though this internal orientation has somewhat decreased during the last decades, armed forces are traditionally barracked in special designated areas with the underlying intention of maintaining self-reliance to recourse to in times of high unstableness and are not as socially integrated in a neighbourhood as police officers are. At the bottom-line, the armed forces modelled on aforementioned features proved to be a versatile instrument deployed not only in times of war or national emergencies but also to implement measures of peace support. Even though

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humanitarian aid operations in a strict sense are said to be inapplicable to armed forces due to their subordination to a political mission, their accomplishments in peace-support operations in past and present speak for themselves. Yet, a sustainable democratic control of armed forces is obligatory and involves three distinct, though closely related elements: the strict non-involvement of the military in domestic politics, democratic control of defence policy, and democratic control of foreign policy.

c)

Police Forces

aa)

Defining the Police

Since the armed forces are neither the sole instrument specialised on the management of violence and force nor the only bearer of legitimate force in a state, the institution in question requires a more detailed consideration. Members of both institutions carry arms, are dressed in uniforms and trained internally. Thus, police and armed forces are regularly referred to as “two polar types of organisations applying force”.529 Their distinguishing character lies within their social function. aaa)

Inherently Political

The standing European army served as role model for various contemporary military establishments throughout the world. Appearing in France with the establishment of the Compagnies d´Ordonnance in 1445 and subsequently in England with the New Model Army in 1645, it soon became the prevalent form of military organisation during the seventeenth century.530 It was not before 200 years later that separate police bodies were institutionally differentiated from the military as a general practice. Noteworthy, the separation of the police took place parallel to the military’s process of professionalisation. Prior to the developments of the nineteenth century, an employment of armed forces as a police force was common practice. Policing in its earliest form lacked any specialisation, training or recruitment. Due to the lack of professionalism, loyalty was regularly a deficiency since locally recruited personnel often sympathised with insurgents. On the other hand, a deployment of the military for the purpose of crowd dispersal and internal security often led to disproportional consequences, thus leading to distrust and hatred towards political authorities in the

529

Hans Geser “Internationale Polizeiaktionen: Ein neues evolution€ares Entwicklungsstadium milit€arischer Organisationen?” Georg-Maria Meyer (Ed.) Friedensengel im Kampfanzug, Opladen 1996, p. 45. 530 It was not before the early 1600s when permanent regimes appeared in other parts of Europe, such as Italy and Spain, whereas a standing force in Prussia was created as recently as 1660.

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A Comparative Law

population.531 Using the military for law enforcement and internal security tasks had self-defeating effects and gave birth to separate civilian police organisations. Being the military’s primary expertise the management of lethal violence clearly ill-served the goal of transforming this power into authority. In contrast to the military, the police was institutionally disaggregated from the armed forces to provide a more specific responsibility to society. Mission of the police was to defend and reproduce the domestic status quo in terms of public order, commerce, and routine patterns of social interaction, virtually acting as internal governance of the community.532 But since the initial concept was to keep up social order and continuity on behalf of the ruling political party, the police could by definition never be a politically neutral instrument. Likewise contrasting the military appears the gradation in the use of coercive force. While the application of deadly force is still the main expertise of the military, it is strongly discouraged for the police by internal regulations, administrative practise, and broader legislation. While police forces are by design an instrument of state coercion to act within the national community to defend and reproduce public order and security, it largely relies on graduations of force in order to accomplish their task. Primarily, police forces bank on negotiations and persuasive coercion, extending only in exceptional cases to the use of lethal force. It lies in the nature of the task, that policing is characterised as an inherently partisan and political act. Consequently, any engagement of the military in the fulfilment of such tasks inevitably politicises it, which in turn impinges on democratic consolidation.533 It is particularly noteworthy, that the willingness of civilian politicians in transition states to engage the military in political processes is regularly significantly high due to the potential impact and consequential advantage on the political competition. The tempting call on the military to preserve a political status quo during internal crises is the most concrete example of this phenomenon. In Germany, a full discussion concerning the lethal use of firearms even in the exceptional case of hostage-taking with an imminent danger of life ensued accordingly. This debate came under the heading of Finaler Rettungsschuss, regarding the purposeful killing of the offender by means of a final and fatal shot fired by police forces as the only possible option to save a victim’s life.534 However, no general appreciation could be gathered to abandon a special legal provision for police officers, thus leaving a justification to existing provisions like self defence and shifting responsibility to the private citizen instead of undertaking liability by the

531

A typical example for such an event is the Peterloo Massacre from August 16th 1819 in Manchester, Great Britain, with the result of eleven dead and about 400 wounded, see http:// victorianweb.org/history/riots/peterloo.html, visited May 24th 2010. 532 Philip John Stead, “The Police of France”, New York, MacMillan, 1983, p. 3 533 Larry L. Watts, “Whose Professionalism?: Separating the Institutional Roles of the Military & Police”, Conflict Studies Research Centre, 2001, p. 13. 534 Also known as a preventive “Shoot-To-Kill-Order”.

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appropriate authority. On the contrary, a corresponding provision was introduced in most German states to offer police officers the legal protection requested.535 While the military are often subject to a special legislation, the police are generally subjected to the same legislature and judicial procedures as any other citizen of the state. During the development from policing to profession, the mission of the police became redefined from a military force maintaining internal security to an institution tied to the legal system. Besides providing the necessary expertise appropriate for their mission, the police forces are also granted a legitimate mandate for utilising this expertise against portions of the national population. Contrasting to the military, the police do not isolate a society by forming a barrier between them and a collective opponent beyond the national territory. Provided that the mandate of the police assigns actions within the society, the social sense of responsibility differs at large from that of the armed forces. By and large, the political nature of policing is often regarded as being of a special kind, compared to the military. Due to the protection and reproduction of a given legal, political, and social order, the police are much closer tied to a political entity endorsing it.536 By playing a decisive service role in contemporary democratic societies, the always-inherent partisan nature of the police forces employed hinders the police to act as neutral intermediary between competing political movements. This leads to political characteristics of the police, even though the single officers do not have to be politically involved themselves. bbb)

Bottom-Up Organisation

The general term “police” derives from the Greek expression polis, referring to the maintenance of a politically settled rule of law of a national society and thus aiming to combat intra-social and internal conflicts.537 While members of police forces tend to identify themselves with the society they live in, they mainly rely on socalled “soft power” in the sense of a controlled application of force with respect to adequacy and the integrity of persons. In view of their area of responsibility, task of the police is to react to incidents relating to the public order in shortest period of time in accordance with the principles of impartialness and commensurability. With regard to sanctions, police work in a democracy is mostly reactive instead of active. Given these broad and rather vague circumscribed responsibilities, the individual police officer finds him confronted with manifold and multiplex functions. In return, this leads to distinct room for manoeuvre and an extended scope of discretion. The consequential higher degree of initiative of the individual police officers leads in turn to a higher degree of learning ability. The variety of tasks and diversity 535

Only 12 out of 16 German federal states decided to include a respective legal construct in their law on the police, arising from the attacks during the Olympic Games in Munich 1972. 536 In Germany, the police forces have always been closely related to the executive of the state, thus rendering a parliamentary decision prior a foreign assignment of police forces obsolete. 537 Sociological, this term is referred to as “microviolence”, see Karl W. Haltiner “Polizisten oder Soldaten?” supra, p. 292.

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A Comparative Law

of responsibilities provokes the police officer to develop particular abilities, such as psychological, social and functional skills. Thus, the quality of police work roots in the quality of the individual police officer, his personal integrity and judgement as well as of his personal authority and professional capabilities. These entire requirements portray the modern police officer as a multifunctional asset with a remarkable decisional competence. It is common knowledge that a police officer can fulfil his mission best if he is integrated in a network of local relations and contacts. This network serves as source of information vital for his work. In contrast to military organisations, police forces are regularly very open and undisclosed to their social environment. Their tight integration into this social environment conveys the information relevant for their actions and a subsequent success. Therefore, police officers with a lower rank often dispose of relevant information earlier than their superiors do. It is thus their task to observe and interpret relevant information from their environment and to decide about further proceedings concerning these matters. Lower ranks also decide whether to inform their superiors about the occurrences. As to that, police organisations are normally of a flat hierarchy and are generally structured in a decentralised way. All the described features allow for a qualification of the police forces as a Bottom-Up organisation.

bb)

Defining the Mission

Broadly speaking, main missions of the police are prosecution, law enforcement and the preservation of internal security. But since police forces have been deployed not only nationwide but also abroad, these categories have to be refined beyond this primal perception.

aaa)

Policing at Home

The traditional role of the police comprises almost exclusively tasks within the national territory. It was not until a few decades ago that the scope of responsibility of police forces began to stretch beyond the national borders. 1)

Community Policing

Modern police forces are regularly used as a kind of emergency service to provide public safety functions as well as to report minor offences, e.g. for violations of traffic law. According to this overall development, the national territory represents the genuine place of application in contrast to the armed forces that are either deployed abroad or within the national territory in exceptional cases only. The most common place of policing is still the country of origin of the units concerned, outlining their primary operational area.

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But also the armament and equipment marks the police off the armed forces. Military forces apply coercive force as a general principle or at least use their extensive weaponry to deter opposing forces. Though in the normal course of duty many police officers carry firearms in accordance with the provisions of their jurisdiction, their use or the use of deadly force is a typical measure of last resort, used only to safe human life since most jurisdictions do not even allow for its use against fleeing felons and escaped convicts. Specialist units of the police for handling armed offenders and similar dangerous situations can be found in many jurisdictions, regularly able to call on the military in cases of extreme danger. Basically, police forces are security forces just as armed forces. However, they are much deeper-rooted in society and integrated into the population due to the higher degree of visibility and public appearance as exemplarily caused by neighbouring policing. In addition, police forces are reliant on close cooperation with their fellow citizens, depicting one major and characteristic feature differentiating the police from the armed forces since the latter are traditionally rather offensivelyminded and confrontation-oriented. Due to these features and their public role that comprises in some European countries the handling of passport and identification affairs, modern police forces are regularly deemed as a service organisation rather than as a security force. Among traditional tasks of European police forces comprise activities that render the police a service provider to the population. Maintenance and restoration of public security and order as the piece of service provided for by the police mark the change in perception which led in turn to extensive reforms of both training and structure of the forces. More than ever, the support of society within the legislative framework and according to social values and goals of a democratic society constitutes the thematic priority of modern police bodies. Tangible issues in this context are the protection of life, property and warding of dangers by means of vigilance and patrols. In particular, the protection provided by police forces does not only comprise the safeguarding from offences but also from incidental damages and detriments. The safeguarding of civil liberties of the individual as well as the information of the population concerning forms of self-protection or the provision of assistance and support for those in need or affected by conflicts or crises mark the widespread field of responsibility of the police forces. As illustrated, principal tasks of the police have undergone a constant change over the last decades. A change in perception of the police led in turn to constant reforms of training and general structure. The field of attention of the police shifted to a support of society and the offering of services within the legal framework and social values of a democratic society. More specifically, these services comprised the safeguarding of life, property and the averting of dangers or hazard control. Safeguarding in this sense did not only cover protection from criminal offences but also from accidental casualties as well as the guarantee of civil rights and the lending of multifaceted assistance to persons in need. Continental European countries often added more robust missions to their police forces, especially to paramilitary police bodies. In contrast, other countries such as the United Kingdom or Ireland did not order their police officers to bear arms when patrolling the streets at all.

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A Comparative Law

At the bottom-line, the scope of autonomy and self-reliance of police officers has been continuously scaled down or subjected to juridification during the last decades. Insofar, police forces have drawn nearer to the military or at least diverged to a certain degree from the classic image of the self-reliant acting police force as far as traditional policing is concerned.

2)

Law Enforcement

Law enforcement, sometimes also referred to as Code enforcement, is the act of enforcing a set of rules, principles, or laws and insuring observance of a system of norms or customs. Authorities usually enforce a civil code, a set of rules, or a body of laws and compel those subject to their authority to behave in a certain way. The mission to observe the adherence to laws and rules is assigned to numerous individuals and organisations, however forming an integral part of the police mission and government organisation. Thus, the term “law enforcement” is often referred to as the activity of making certain that the laws of an area are obeyed.538 Consequently, the term “law enforcement agency” is used to describe any agency, which enforces the law including local or state police, or federal agencies. It could also refer to a national police such as the national crime squad or to describe an international organisation such as EUROPOL or INTERPOL. Exemplary law enforcement agencies in Germany are the Federal Criminal Office, the State Criminal Office, the Federal Police, the State Police, Standard Branch of State Police, Detective Branch of State Police, Riot Police Branch of State Police, Federal Parliament Police, Local and Customs Police, Customs Investigations Police and Penitentiary Police. Comparable regulations are effective in the USA where individual members of law enforcement agencies are referred to as “law enforcement officers” and defined as an employee, whose duties include primarily the prevention, investigation, apprehension, or detention of individuals suspected or convicted of offences against the criminal laws, including an employee engaged in this activity who is transferred to a supervisory or administrative position; or serving as a probation or pre-trial services officer.539 Alternative definitions refer to a law enforcement officer as a person employed by a local, State, tribal, or Federal justice agency including courts, as well as district attorney’s offices. Corresponding definition are provided by the UNHCHR, according to which law enforcement officials shall at all times fulfil the duty imposed upon them by law, by serving the community and by protecting all persons against illegal acts, consistent with the high degree of responsibility required by their profession. The term “law enforcement officials” shall include all officers of the law, whether appointed or elected, who exercise police powers, especially the powers of arrest or detention. 538

Definition as proposed by the Cambridge Dictionary, see http://dictionary.cambridge.org/ dictionary/british/law-enforcement, visited May 24th 2010. 539 Cf. 18 USC Part I Chapter 12 } 232 (7).

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In countries where police powers are exercised by military authorities, whether uniformed or not, or by state security forces, the definition of law enforcement officials shall be regarded as including officers of such services.540 The general principle of police forces emerged from the need to protect public safety in a nation by performing the tasks of prosecution and law enforcement, leading to the development of a governmental organisation charged with the responsibility of maintaining law and order. Thus, most western legal systems allocate the investigation and discouragement of crimes to the police forces, with a particular emphasis on crimes against persons and property beside the abovementioned task of maintaining public order. From a historic perspective, police forces are the classic representative of the state as the executive authority facing the citizens. To a higher degree than today, the police officer was responsible for public welfare, mainly by fulfilling the two tasks prosecution and law enforcement. Over the course of time, police forces found themselves deprived of some classic tasks, while police forces differentiated within Europe. One of these classic tasks that formerly belonged to the scope of responsibility of the police and later became assigned to other security forces was the execution of sentences. This trend was carried forward by an increasing specialisation of the police and a consequential organisational spin-off of departments such as the criminal investigation department. The typical Napoleonic distribution of tasks according to urban and rural areas and the subsequent establishment of gendarmerie and national police forces caused additional fragmentation of a coherent police force. Some countries – such as France – developed a criminal investigation police separate from standard uniformed police forces while others even subordinated the criminal police to other ministries or judicial authorities. Due to this fragmentation in respect of functional specialisation or political factors, a homogenous occupational image of police forces is hard to define. This development led to a high degree of national competition and technical specialisation, conveying an occupational identity of the forces rather in functional than in national terms. Thus, a French detective is likely to perceive similarities with a German or an Italian detective than with a Gardien de Paix or members of the Gendarmerie. But also within a police body, different structures with different features have emerged that are difficult to bring down to a common denominator. Regularly cited examples are members of the German Federal Criminal Police Office who share a common professional education but are subjected to extensive and diverse further training and perform in likewise different functions such as investigator, analyst, technician, programmer, undercover investigator or personal protector.541 In the light of abovementioned originalities of the police forces, a corporate identity of the police at large is almost inexistent. 540

Code of Conduct for Law Enforcement Officials, adopted by General Assembly Resolution 34/169 of December 17th 1979. 541 J€urgen Storbeck “Grundz€ uge eines gemeinsamen beruflichen Selbstverst€andnisses der europ€aischen Polizeien” Auf dem Weg zu einer europ€ aischen Polizei, Rolf Moire´, Manfred Murck, Rainer Schulte (eds), Stuttgart 1992, p. 220–228 (221).

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A Comparative Law

There are however some common factors which convey the notion of a occupational identity. Among these factors are the representation of the sovereign state and the authority to invade in personal rights of individuals and the monopoly of force to implement the rule of law or to bring on peace. The right to apply coercive force distinguishes the police officer from his fellow citizens, assigning him to exceptional responsibility. Closely connected to the responsibility of the police officer concerning an application of force is the derivation of the right to do so. The closer a police officer is associated to the population and lower the degree of subordination towards the population, the higher will be the identification of his fellow citizens with his role. Likewise, the competence of the individual police officer has been increasingly limited over the course of years. Though older laws and regulations regularly contained a general clause to allow for a dutiful arbitrary decision, modern laws curtail this freedom to a large extend. Also the practical application of police measures is governed by diverse guidelines such as data privacy acts, bringing about a continual curtailment of the freedom of scope of the individual police officer. In contrast to totalitarian states, modern states perform extensive control over their police forces. Mostly, police forces are supervised by their ministries, controlled by judicial bodies and parliamentary committees as well as by commissioner for data protection. Yet the occupational identity of the police does regularly not imply a self-consideration of being a mere instrument of the state. Despite the representation and exertion of executive authority, police officers are an essential part of the democratic state. To this respect, a police officer may – as public servant or citizen – impinge on decisions by means of political parties or unions. Features common to most European police forces are thus the representation and exertion of executive authority, the close obligation to laws and regulations, the intense and independent control over actions of the police and can be found throughout Europe in comparable pattern. Though these similarities distinctly coined the occupational identity of the police, similarities pertaining to political or organisational linking cannot be determined. Since criminal investigation departments of Germany, the United Kingdom, in parts of France, and Italy are subordinate to the Ministry of Interior, the same departments are subordinate to the Ministry of Justice in the Netherlands, Belgium, and Denmark. Some security police forces are even directly subjected to the Prime Minister or the President. Additional distinctions arise from the maintenance of paramilitary gendarmeries as established in France, Italy, and Spain, which are assigned to the Ministry of Defence. And though the Guardia di Finanza is structured and organised along military lines, it even has a dual affiliation with the Ministry of Defence and the Ministry of Finance. Concerning the structuring, the Netherlands promote a system, which assigns the police forces to the various municipalities. Given the individual affiliation of the police forces, diverse performance requirements and conceptual formulations can be identified. While the maintenance of public security and order and the averting of danger is mostly assigned to forces under the Ministry of Interior or the Ministry of Defence, criminal prosecution is mostly a matter performed by the Ministry of Justice. Precautionary measures

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against political endangerments are mostly taken by forces subordinate to the Prime Minister or the President while the enforcement of tax claims is designated to forces of the Ministry of Finance. Some concern may be raised whether these national diverging structural differences can be smoothed down on short or medium term. Yet some developments may shed hope, such as the advancing cooperation of various police forces within joint authorities for special tasks, e.g. in national agencies fighting illicit drug trafficking or terrorism.542 But also differences in the way of policing are numerous. The bobby on his beat and uniformed police officer patrolling pedestrian precincts are much likelier perceived as a cheerful helper lending assistance in times of need than a detective representing the law and the punishing state. As to that, the increasing employment of undercover police officers and investigators is also likely to affect the relationship between the population and the police. Such undercover officers may be needful for an efficient countering of organised crime, however they bear the risk of changing the public standing of the police to an image of repression and a “weapon” of the state.543 A similar negative impression may all the same be caused by police forces dispersing confluences. To such crowds, the police forces appear rather as an opponent than a helpful element of the state. In turn, corresponding attitudes of the population regularly leads to strong social cohesion of the forces concerned. A likewise negative image of the police officer is that of being bureaucratic, caused by a lack of visibility in public except for police stations and patrol cars and the increasing amount of legal regulations and formalities and the consequential lack of community proximity. Abovementioned characteristics concerning a downscaling of the scope of self-reliance of police officers and a continuous juridification add to the divergence from the classic image of the self-reliant police officer also pertaining to law enforcement. bbb)

Policing Abroad

The first deployments of civilian police forces during a UN peace operation took place in the Congo and in Cyprus in the early 1960s.544 During this, but also during following missions, their tasks were limited to accompanying local police patrols, monitoring their performance and giving general advice.545 These tasks were remarkably stepped up to conduct executive policing, being solely responsible for 542

Italy for instance, combines officers of the criminal police, Carabinieri and Guardia di Finanza in one drug enforcement authority. 543 J€urgen Storbeck “Grundz€ uge eines gemeinsamen beruflichen Selbstverst€andnisses der europ€aischen Polizeien” Auf dem Weg zu einer europ€ aischen Polizei, Rolf Moire´, Manfred Murck, Rainer Schulte (eds), Stuttgart 1992, p. 220–228 (225). 544 An overview over past UN peace-keeping missions can be obtained through http://www.un.org/ Depts/dpko/dpko/index.asp, visited May 24th 2010. 545 The mission of UN Civilian Police for instance expanded from a mere monitoring in Namibia in 1989–1990 to reform and training in El Salvador in the years 1991–1995.

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A Comparative Law

executing and enforcing the local law and thus replacing the local security forces as a whole.546 This reveals the fundamental shift in principle by enforcing the local law instead of just monitoring its enforcement. In the course of this development, international civilian police and the much wider task of maintaining law and order in war-torn countries soon became one major pillar in the process of peace building.547 One major task during such missions is to replace the existing security structures and indigenous law and order arrangements with a formal system of law and order. And another task is met by the Civilian Police, the one of police reform in the country to be kept at peace. Mostly, the armed forces and the various security forces have all been engaged in the same (civil) war and are all the same militarised since local security forces presented themselves as a generic instrument to oppress rather than to be of public service. Thus, a distinguishing between local police and local armed forces is in such a case not clearly identifiable. Types of crimes to be fought by civilian police units abroad are ethnical or politically motivated harassment, which is in most cases typical for the continuing of the conflict as well as terrorism and insurgency that can in the worst-case lead to a resumption of a full-scale hostility. Among those offence that are to be coped with by the police forces are also crimes related to organised crime such as kidnappings but also muggings and rape as well as petty crime. During the past years, a number of exemplary problems have arisen concerning the capabilities of police forces deployed in peace-support operations. Reason for this is the fact that little or no attention has been paid to the personal backgrounds of the officers involved. Due to the very specialised tasks they face abroad, the need for accordingly specialised capabilities is not to be underestimated. Since these tasks comprise the monitoring and lecturing of existing security forces, special attention has to be paid to a certain proficiency in these functions. This clearly underlines the much wider social role of police forces in a post-war scenario. Unfortunately, the missions had no system to identify specific skills and competencies of the individual police officer to match them to relevant tasks and valuable experiences got lost due to regular rotations. Additional problems resulted from the national distinctions of the countries involved. As a consequence, different approaches were formed to overcome these obstacles. One of these approaches is the splitting of responsibilities into functions and assigning them to national contingents. d)

Paramilitary Forces

“There is no such thing as the standard-Gendarmerie type force”.548 Likewise implying that there is consequently no such thing as the standard-Gendarmerie 546

A mission comprising executive policing took place in Kosovo during the late 1990s. Provisional examples were UNEF I in the Gaza Strip 1957 and ONUC in Congo 1964 where peacekeeping forces in effect maintained law and order. 548 Annika S. Hansen, “From Congo to Kosovo: Civilian Police in Peace Operations”, p. 71. 547

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type mission, this statement clearly calls for a more detailed consideration in regard to the role of paramilitary forces in today’s world. Though the differentiation of between the domestic and the external sphere and the underlying distinction between internal and external security is often characterised as one of the core principles of the modern nation state, many modern and democratic states keep forces which are in some respects located between police and military forces.549 The gendarmerie was originally developed in France in times of the revolution and can nowadays be found in many parts of the world. However, it remains a typical feature of western industrialised countries and did not develop in AngloSaxon or Scandinavian countries.550 Reasons for the rise of gendarmerie forces in general derive from the problem of partially severe civil strife during the upheaval of a nation building process and the forging of a national identity mainly by conquest rather than by longstanding development. While these processes were regularly accompanied by severe civil strife and internal state conflicts, the basically military personnel was entitled to maintain law and order in rural areas and along major thoroughfares. These gendarmeries as well as their ascendants have undergone a distinct demilitarisation, leading to both an attenuation of their military characteristics and a secession of their links to the armed forces. However, some military features are still visible today. Many paramilitary forces share a double affiliation with the Ministry of Defence and the Ministry of Interior. Likewise, their structures display military origins for they are often organised along military lines, leading to a higher degree of centralisation and hierarchy. In addition, paramilitary forces are constantly equipped with distinctly heavier weaponry and suppression capabilities compared to civilian police forces. Their armoury comprises armoured cars, airplanes, helicopters and light infantry weapons. Today’s growing importance of gendarmeries can be explained by the continual converging of the realms of internal and external security, calling for an appropriate instrument, trained and equipped to fit the needs. Key areas of the post-Cold War security agenda are to be found in the more robust fields of border control, peacesupport operations and the fight against terrorism.

aa)

Border Control

The main threats of today’s time apart from those arising from so-called roguestates, are no longer state-based and military, but rather non-state and transnational. Consequently, main issues are drug trafficking, irregular immigration, human smuggling and transnational organised crime in general. As a consequence, 549

Derek Lutterbeck “Between Police and Military – The New Security Agenda and the Rise of Gendarmeries”, Cooperation and Conflict: Journal of the Nordic International Studies Association, Vol. 39 (1), p. 45–68 (47). 550 An exception to this rule is Ireland, where the Royal Irish Constabulary plays a similar role to the continental gendarmeries.

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controlling the national border in a more effective way has come to be regarded as an essential strategy in preventing these phenomena.551 Another European module concerned with this mission is the Schengen Accord of 1985, implementing a strengthened border control at the external borders of the EU. These heightened concerns with transnational challenges and effective border control have inevitably led to a growing importance of paramilitary forces in the EU. Since the beginning of the 1990s, paramilitary forces concerned with border control could witness a definite shift in their priorities as well as in funding from external to internal.552 Especially Gendarmerie forces seem to have been the fastest growing security forces in the EU area.553 Since the end of the Cold War and the accompanying cutting of military budgets, the expenses in the field of law enforcement have distinctly increased.554 Furthermore, much wider powers have been granted to the units to enhance border control during the 1990s, e.g. the extension of the German Federal Border Police’s right to conduct random identity checks and searches from 2 to 30 km inward from the borderline as well as new laws, giving the Bundesgrenzschutz the legal basis to operate not only alongside the border but also in trains and airports. Another noteworthy example of the growing importance of paramilitary forces are the border security forces set up in the former communist states of East and Central Europe. Being almost purely military institutions to ward off a Western attack until the beginning of the 1990s, the border guards began to transform into gendarmerie-like agencies, resembling in many aspects the gendarmeries of Western European countries. Comparable to those, many of them have a dual affiliation with the Ministry of the Interior and the Ministry of Defence while some continue to be part of the armed forces. Likewise, they are generally structured along military lines and equipped accordingly to their tasks to fight transnational organised criminal organisations that are particularly dangerous and thus call for a more robust instrument than provided by regular police forces. Yet the rise of gendarmeries remained not unchallenged within Europe. Belgium set the pace to review the role and value of gendarmerie forces by reforming its police structure and incorporating their gendarmerie into one integrated police service. This clear commitment to community policing bears some forerunner potential while experiences with the integrated police force are likely to be carefully monitored by other European member states. Paramilitary units have also been widely discussed under the headline of the “Third-Force-Option” for instance in the 551

Derek Lutterbeck, “Between Police and Military – The New Security Agenda and the Rise of Gendarmeries”, in: Cooperation and Conflict: Journal of the Nordic International Studies Association, Vol. 39 (1) p. 51. 552 In 1990 alone, 200 million Euros were allocated to the Spanish Guardia Civil, creating an advanced coast control regime to impermeabilize the country’s Mediterranean border. 553 e.g. a doubling in size of the naval and air service of the Italian Guardia di Finanza can be noted between 1989 and 1999. 554 According to Lutterbeck, the defence spending in NATO countries dropped from 4.5% to 2.5% of GDP between 1989 and 2000.

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UK. Despite some indisputable advantages, a fundamental change in policing could not be achieved.555

bb)

Peace-Support Operations

As a result of the steadily increasing number of multilateral peace-support operations since the early 1990s, the relevance of paramilitary gendarmerie units in this field has significantly grown. This development is mainly due to the in-between status of the paramilitary forces and their inherent combination of police and military features. But not only an expansion in number, but also a certain advancement in the nature of these operations has become obvious. During the Cold War, peacekeeping operations were conducted by simply placing an interposition force between warring factions. Ever since, these missions have grown in complexity, now comprising not just of military but also a number of humanitarian and civilian aspects. While the central aspect shifted from monitoring a ceasefire to conducting crowd and riot control, protecting minorities and refugees, fighting organised crime and reorganising local police forces, so did the workload of the deployed forces. Armed forces had to extend their almost traditional reluctance towards this new law-and-order role. This marked the beginning of the deployment of paramilitary or gendarmerie forces within the framework of multilateral peace-keeping operations. Among the first occasions on which those forces were deployed were the missions in Haiti and El Salvador between 1992 and 1995, applying contingents of the Spanish Guardia Civil and Argentinean Gendarmerie Nacional. In contrast to following operations, these contingents were either integrated into the international police or military forces. In succession, the Multinational Specialised Units (MSU) in Bosnia-Herzegovina and Kosovo were composed exclusively of police forces with a military status. In addition to the MSU in Kosovo under KFOR command, a Special Police Unit (SPU) as part of the UN police mission UNMIK was created. On EU level, the growing significance of the gendarmerie is reflected by the agreement of the Feira Summit in June 2000 or the joint initiative FIEP, providing a basis for the EU police rapid reaction force while even on NATO level, relating proposals concerning the establishment of a multinational gendarmerie have been advanced. One of the benefits of gendarmeries is their interoperability. The outline of the development demonstrates how versatile paramilitary forces can be applied in peacekeeping missions. Since they operate in a so-called “grey area”556 during which acts of war have receded but peace has not yet been fully restored, the typical tasks during these missions comprise rather the gaining of control than the 555

Doron Zimmermann “Between Minimun Force and Maximum Violence: Combating Political Violence Movements with Third-Force Options”, The Quarterly Journal, Spring 2005, p. 43 et seq. 556 This expression has mainly been coined by the French and Italian Representatives of their Gendarmeries.

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destruction of the counteracting force. Thus acting as an interface between the military and regular police forces, the paramilitary forces combine the advantages of both instruments. But at the same time the policing forces will require equipment adapted to fit their needs in the often hostile and instable environment of a post war setting. One weak point concerning a deployment of paramilitary units within this setting is the varying usefulness, effectiveness and credibility due to the different nationalities of the contingents. Another problematic issue is the difficulty in recruitment of the gendarmes. A third problematic issue is in some cases the democratic standard of the state of origin. This is one of the most serious problems due to the fact, that gendarmerie units are typically heavily armed, thus creating a bigger destabilising effect. Furthermore, it has not always been clear, to which extend the paramilitary units were self-governed or within military command lines. Both the MSU in Kosovo and Bosnia-Herzegovina were subjected to the KFOR and SFOR and the respective RoE but not necessarily acting in concert. While flexibility was somewhat the biggest benefit, their role in practice remained unpredictable, often depending on the relationship of the commanders among each other. In some cases, the deployment of gendarmerie forces even undermined the authority of the UN by conducting two fundamentally different types of executive policing.557 Nevertheless, the gendarmerie forces in at least some European countries gained notably in popularity through these engagements. Still, commentators have criticised the preceding military influence on police work due to the engagement of paramilitary units in peacekeeping missions. And indeed, a careful balance between practicality and clear distinction between police and military work seems to be deemed needed by most commentators.

cc)

Fight Against Terrorism

Though the term “fight against terrorism” is not an original task of paramilitary forces under this specific designation, most Gendarmeries do consider it as a major mission today. Accordingly, many forces mention counter terrorist activities in their regulatory framework. This approach can be regularly witnessed in countries whose accession to the EU fell into the post-9/11 era. Without a doubt, the circumstances of the last years left an impressive impact on the self-conception of security forces and on the concept of policing in general. Particularly malleable proved those countries with no firmly determined security structures and a specific eagerness to modernise their forces in a brief span. A broader approach leads however to the perception that the fight against terrorism in its constituents constantly belonged to the scope of responsibility of 557

An example to this were the Italian Carabinieri and their independent policing in Kosovo, having being reluctant to submit to the law as it was enforced by the UN and thus being highly problematic in the context of training local police forces. Other examples are the UN Missions in Somalia, Haiti, and East Timor.

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security forces, however labelled in a different manner. Terrorism in general appears closely related to violent insurgence aiming at a changeover of power by force. At the same time, terrorism exhibits distinct features of organised crime whereas measures taken against terrorism relate to some extend to border control tasks. At the bottom-line, the fight against terrorism combines matters of traditional paramilitary tasks though labelled with a different headline by several legal provisions. The mere term “fight against terrorism” can be regarded as contemporary; its underlying relevance is lasting.

e)

Cooperation Within the Particular Mission

When approaching the question of cooperation between the armed forces and police forces, the first step towards a clear and coherent strategy to separate police and military powers involves identifying the boundaries and points of interface between police and military functions, roles and activities. Having depicted the distinctions in principle between the missions, the next step should be taken to identify the points of interface.

aa)

Within National Territory

Cooperation between military and police forces is in the majority of cases limited by regulations which are in most cases rather detailed. Generally, recourse to military resources is reserved for emergencies and must remain ultima ratio. Such emergencies may be ascribed to natural catastrophes or grave national unrest. Another reason to fall back to the armed forces is external aggression endangering the existence of the state that requires mustering all forces available. Points of interface of such cooperation are for instance provision of housing and accommodation for military personnel in police quarters, provision of technical means and equipment such as aircrafts or ships for SAR purposes or during searches for missing people. Looking over the Atlantic and the history of civil police forces in the United States and their process of differentiating themselves from the armed forces, the Posse Comitatus Act of 1878 is quite certainly the most relevant legal regulation.558 It prohibits the use of the armed forces as a posse comitatus to execute the laws. However, it allows for exceptions under circumstances expressly authorised by the Constitution or Act of Congress. In addition, it allows a use of armed forces for a range of domestic purposes such as law enforcement functions if the President determines that the use of the armed forces is required to fulfil the President’s 558 Sense of Congress reaffirming the continued importance and applicability of the Posse Comitatus Act, Title 6 Chapter 1 Subchapter VIII Part H Sec. 466, see: http://www.law.cornell.edu/ uscode/uscode06/usc_sec_06_00000466——000-.html, visited May 24th 2010.

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obligations under the Constitution to respond promptly in time of war, insurrection or other serious emergency. These powers are backed by the Insurrection Act559 and the Robert T. Stafford Disaster Relief and Emergency Assistance Act.560

bb)

Within PSO

Even though there are certain shortcomings in the operation of civilian police forces during peace-support operations, they are assuaged by cooperation within the mission to enhance the effectiveness of international civilian police. The performance of the civilian police is believed to be most immanently affected by the extend of cooperation with the military since police forces that are deployed in an area of high unstableness and crime and lacking of any full area control can massively benefit from military support.561 Nonetheless, cooperation between the armed forces and the police remained underrated in the monitoring missions in the early 1990s, confined to logistic support. But with the rise of civilian police forces in peace-support operations the interface between police and military scaled up. Multiplied opportunities for cooperation also called for a close review of the limitations of military involvement in policing. It turned out, that with the growing role of civilian police in peace operations, the military found the perfect reason for leaving the highly unpopular task of policing to the police forces. By now, the military overcame their reluctance to some extend, simply because assisting in resurrecting self-sustaining public security is regarded as an effective and maybe the only viable exit strategy at hand. Nevertheless, it would be advisable to approach this subject very differentiated and cohesively to keep the military from assuming police tasks and thus undermining the still weak rule of law. To profit from all advantages of improved military-police cooperation, a few problematic cases have to yet to be abated. One is the mismatch in coordination of the mission, be it the schedule of deployment or the practical enforcement in the field. A second one is the continual lack of contact between decision-makers as well as military and police planners and the involved organisations and authorities. It widely depends on the authority leading the military mission, be it NATO or a coalition of willing nations, if additional problems concerning the access to operation’s funds and resources or the chain of command arise. Yet it has to be made clear, that close military-police cooperation is not to be regarded as a panacea. The fact that an option to call on a robust backup will often be regarded as a benefit for the police engaged in the aftermath of a war may not belie the harm that can be caused by the effects on the public trust by 559

Title 10, Chapter 15, see http://www4.law.cornell.edu/uscode/html/uscode10/ usc_sup_01_10_10_A_20_I_30_15.html, visited May 24th 2010. 560 Title 42, Chapter 68, see http://www.fema.gov/pdf/about/stafford_act.pdf, visited May 24th 2010. 561 Annika S. Hansen, “From Congo to Kosovo: Civilian Police in Peace Operations”, p. 64.

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undermining the newly established rule of law if too closely associated with the military. This applies especially to countries, in which military and security forces in general have a history of being instruments of oppression and domestic politics rather than of democratic legitimacy. Apart from that, a simple thing as the lack of mutual conceptual understanding and a common terminology forms a broad gap between the military and the police that needs to be bridged. This conceptual disparity reflects in the different manners of operation, the diverting patterns of deployment and the varying organisational structures. The understanding of the military forces is based on a concept of selfcontaining units whereas the understanding of police forces is rather one of individuals being dependent on community support for communications, logistics and transportation.562 But still the biggest gap between those two instruments is the use of force. This is rather a matter of professional identity than training since soldiers need to overcome their opponent by force whereas police forces work “through ruse and discretion”.563 Thus, their function within cooperation between police and the military is to be found in supporting the police rather than in replacing it or acting as such. In respect thereof, an exceptional provision has been established by Slovenia according to which foreign assignments of the police forces are limited to “non-military tasks”.564 Such a regulation is as rare as it is exemplary and should be assumed as principle by other nations participating in international missions involving police – military cooperation. Though the response towards the challenge of policing may vary due to certain national styles and traditions, the military role in policing is limited by the demands of war fighting. It is even in the interest of the police forces that the standing of the military forces as an efficient and strong back up is not weakened. The goal of an effective division of labour requires an identification of functional relationships to complement and support each other rather than to renounce its character. Concerning the character of the military, this stands for the providing of a secure environment. Concerning the police forces it stands for promoting of the rule of law.

f)

The Problem of Homogenisation

Due to the fact that both police and the armed forces belong to the same organisational field and act as coercive elements of a state, both institutions experience considerable tendencies towards isomorphism and subsequently homogenisation. While isomorphism as a generic term is defined as a constraining process that forces one unit in a population to resemble the other units that face the same set of environmental conditions, a closer examination of the structural processes identifies 562

Annika S. Hansen, “From Congo to Kosovo: Civilian Police in Peace Operations”, p. 70. Alice Hills, “The Inherent Limits of Military Forces in Policing Peace Operations”, p. 94. 564 Police Act of the Republic of Slovenia, Chapter II Article 19. 563

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some specific properties. First, an increase of interaction between units, second an emergence of interorganisational structures of domination and patterns of coalition and third the development of interchangeable ethos between the units. At the bottom-line, three different kinds of isomorphism have been identified among organisational forms: Coercive, mimetic and normative isomorphism.565 Coercive isomorphism stems from political influence as well as from formal and informal pressures exerted on organisations by other organisations upon which they are dependent or by cultural expectations in the society, whereas mimetic isomorphism results from standard response to uncertainty or lack of understanding leading to organisations modelling themselves after similar organisations. Normative isomorphism is mostly associated with professionalisation and claims two sources: formal education and growth of professional networks and associations. All these approaches of explaining the process of homogenisation within the state’s coercive apparatus lead to the conclusion that police forces are to some extent subject to militarisation. Among others, fields in which police forces show some degree of militarisation are organisation, training, deployment, control intelligence and justice.566 Some voices in the literature point to a significant quality, where police personnel with a legal military status such as in France tend to demonstrate medium to high-levels of militarisation in regard to control, intelligence and justice.567 Civilian police forces on the other hand are more likely to exhibit high levels of militarisation in the areas of organisation, training and deployment. However, this cannot serve as a general finding. Paramilitary police forces adopted in particular military structures and a military form of organisation as their own just as they did in view of training methods or equipment. Taking a closer look to the genesis of many civilian police forces, this development is hardly surprising. Even the British police forces that are considered among the most civilian of police frameworks resorted to a military model in organising a police unit capable of CRC issues.568 Over and above, the transfer of personnel and procedures between armed forces and police forces is common custom. In respect of organisational militarisation, military language and symbols as well as military strategies and tactics are widespread especially in highly specialised police units. In addition, the inherit “command-and-control” system of the armed forces proves incommensurate with the very nature of policing. Whereas police officers are afforded enormous discretion in conducting conventional patrol, the typical setting of an armed conflict makes 565

Paul J. DiMaggio, Walter Powell “The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields”, American Sociological Review, 48 (April), 1983, p. 147–160. 566 Arthur Costa, Mateus Medeiros “Police demilitarisation: Cops, Soldiers and Democracy”, Conflict, Security & Development 2:2 2002, p. 25–45, (33). 567 Arthur Costa, Mateus Medeiros “Police demilitarisation: Cops, Soldiers and Democracy”, Conflict, Security & Development 2:2 2002, p. 25–45, (30 ff). 568 The father of modern policing and founder of the British Police Forces Sir Robert Peel even appointed the army officer Colonel Charles Rowan as the first Commissioner of the London Police.

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soldiers stick to their “rank-and-file” model. In other words, coordination as the central element of policing is substituted with command and control in the case of the armed forces. Yet this is not the only shortcoming of aligning structures and procedures of the two security forces. While the police forces traditionally rely on the personal experience and judgement of the individual officer, armed forces have not been able to benefit from such a community-based approach. On the contrary, armed forces do not follow the concept of granting discretion to lower ranks. The police forces however, could successfully profit from the personal relation with citizens without letting-go any supervision over the officers deployed. In contrast to police forces, the military are trained to deliver deadly violence without negative repercussions for its legitimate employment. Another problem area concerns the rather sensitive question of preconditions for the use of force. Since the military normally follow military codes relating to discipline and hierarchy, the police forces tend to put personal knowledge and confidence to autonomously analyse situations centre-stage. A consideration of greater independence concerning the use of force of individual soldiers let alone alternatives to the use of coercive force are regularly not emphasised by the armed forces. A very figurative example of the consequences of the different approaches is the standard firearms training: While police forces usually highlight a non-lethal course of action, armed forces focus exclusively on a preferably complete elimination of the enemy. Plainspoken, modern civilian police forces are lacking the military mind-set that is needed to kill.569 As a direct result to a change in the nature of social control, a militarisation of deployment could be witnessed during the last decades especially in less developed countries. Whereas paramilitary police units were in the past mainly used in a crisis situation, they have proliferated and have increasingly been deployed in proactive “raids” in – what police forces term – a “hot” or “high” crime area.570 Yet this area is one of the most delicate issues of police accountability. Due to the unique nature of riot control, no other area of responsibility bears as much potential disapproval. The sharp impression on the public opinion of the squads operating with larger numbers of officers than normal patrols and with a strict command chain is not to be underestimated. These units represent the quintessential instrument of social control by the state. Thus, the danger of serving political objectives instead of exclusively maintaining order is relevantly high. Members of the armed forces exercise their responsibility as part of their unit rather than as individuals and are commonly less discrete concerning the recipient of the force used. Furthermore, it is commonplace that military intelligence bodies are widely prohibited from collecting information about civilian objects within 569

Artur Costa, Mateus Medeiros “Police demilitarisation: Cops, Soldiers and Democracy”, Conflict, Security & Development 2:2 2002, p. 25–45 (36). 570 Illustrating this development by the example of Brazil and the United States, see Arthur Costa, Mateus Medeiros “Police demilitarisation: Cops, Soldiers and Democracy”, Conflict, Security & Development 2:2 2002, p. 25–45 (37 et seq.).

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their national state. However, the military is not the only organisational field police forces tend to align with. Since police forces also belong to the organisational field of coercive elements of the state and the criminal-justice system, it is crucial to consider with which of these fields the police organisation has most identified in the past.571 Many paramilitary units such as the Gendarmerie in France or the Carabinierie in Italy were to some extend modelled on the military but differentiated themselves increasingly over the years. Especially in the era after the 1960s in Italy and France and in the period following the 1980s in Spain, the paramilitary forces assumed a different police ethos by identifying increasingly with other organisational fields apart from the military.572 At the bottom-line, some general findings of police militarisation may be registered. Concerning the dimension of police militarisation, six specific fields have been identified: Organisational militarisation refers to the imitation of military organisational models, symbols and language by police forces. Police forces adopting military equipment, weapons, training curricula and rules of engagement are subject to militarisation in training. Militarisation may however also be witnessed in deployment when military strategies and tactics are incorporated into police activity. Cases in which police strategies to the whole extend or at least in key aspects are defined by armed forces are referred to as a militarisation of control. A militarisation of intelligence comprises the control or at least influence of intelligence-gathering activities by the armed forces or by military decision-making. Those cases in which police forces are fully or partially accountable to military authorities and military courts may be tagged as cases of a militarisation of justice. Unsurprisingly, most modern police forces have become militarised at least to some extend. While settled democracies such as France proved able to preserve sound police practices and adherence to police standards although members of the police are legally affiliated with the military, less developed democracies will find it hard to keep the balance between militarising and democratising their police. Experience shows that an increase of police militarisation regularly leads to a decrease of suitability to be used for the original purpose of upholding the rule of law and protecting individual liberties. Yet the examples of France or Italy demonstrate the basic feasibility of militarised police units provided that the forces strictly abide to democratic values and the ethos of the forces employed remains civilian.

g)

Intermediary Results

After examining the existing security forces in Europe, hybrid institutions and paramilitary forces (usually referred to as Gendarmerie Forces) adhere to three 571 Arthur Costa, Mateus Medeiros “Police demilitarisation: Cops, Soldiers and Democracy”, Conflict, Security & Development 2:2 2002, p. 25–45 (32). 572 Arthur Costa, Mateus Medeiros “Police demilitarisation: Cops, Soldiers and Democracy”, Conflict, Security & Development 2:2 2002, p. 25–45 (32).

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internationally known principles: they should consist of military personnel, be a mounted force and be quartered in barracks. Today, the term "mounted" is taken to mean mobile while the term “barracks” is taken to mean quickly deployable. As pointed out, the main advantages of hybrid organisations entail simultaneously major disadvantages. An indisputably higher degree of robustness and a tight organisation does not fulfil the basic need of policing. As experienced by several nations, community policing comes along with a sensibly increased feeling of security of the population. Belgium proved the feasibility of an approach that turns its back to gendarmerie forces and strengthens civilian policing in urban areas as well as in rural areas. Though countries still adhering to the concept of gendarmerie forces such as France present a bigger state in term of space and population to justify their individual need for militarily organised and structured forces, yet the Belgian approach holds some advantages. Other countries such as Germany altered the traditional model of gendarmerie forces by assigning the force to a purely civilian command, leading to a preservation of advantages of robust security forces and an avoidance of military influence in civil society. As intermediary results concerning the different missions of the forces, a few principles have to be regarded as being of broad notion. First, most countries oblige their police to answer to ministries of the interior or home affairs, rather than to ministries of defence. Thus, the general impression makes the police be regarded as being a civilian, rather than a military instrument, which is a vital factor. Security forces having inevitably both police and military functions such as border guards etc. should, where possible, be designated as specialist police units and be subordinated to the ministry of interior. Second, police and military forces should ideally complement each other. This is mostly achieved by assigning domestic security matters to the police while focusing its military capacities on external threats. Fortunately, the use of conscripts or servicemen to police is already avoided throughout Europe. However, it remains an important issue in the development of transition states. Third, separation of powers between police and armed forces is both a concept and a system. To achieve this, its principles and procedures should be formalised in legislation and training. For the latter, distinct and specialised education and training programmes need to be advanced.

3)

Defining the Assignments

After analysing the differences and similarities between the missions of security forces within Europe, a conclusion concerning the assignment of the mission can be drawn. It is a basic principle, that in the various European States, a few different but nonetheless distinguishable rules exist concerning the missions of police and armed forces. On which level and by which provision these missions are assigned to the security forces, will be illustrated on the following pages.

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The decision to establish clear distinction between the particular security forces is obviously subjected to individual considerations. While some countries such as Germany developed strict distinctions between police and armed forces, most countries developed less strict divisions of labour. Finland for instance, does not draw a clear distinction in case of cooperation between the two security forces. Finnish military units deployed under a police command retain their military authority and powers. This kind of permissive cooperation is regularly deemed needed especially for smaller countries such as Portugal to prevent a duplication of structures and resources. Such a duplication can however also be witnessed in bigger countries such as Spain where disputes concerning competencies are manifold. This underlines the relevancy of a clear distinction between the missions of police and armed forces: beside the advantages borne by the adherence to democratic principles, the separation of forces entails an effective and efficient division of labour that prevents the generation of double structures and subsequent friction losses.

a)

Missions Defined by Constitutional Law

Apart from Germany and its constitutionally defined mission of the armed forces, comparable rules concerning the assignment of armed forces can only be found in the constitution of the Netherlands, Poland and Spain, yet these countries developed tremendously varying provisions. The definitions of the Austrian, Belgian, French, Hungarian, Italian, Lithuanian, Swedish, Polish and Dutch constitutions can be interpreted so broadly, that they can hardly serve as a tenable astriction to a military deployment. The same holds true for most other European member states since most of them mention a basic responsibility of their armed forces in the constitution alongside the right to defend the national territory and population. Due to this shortcoming, a clarification was formulated by the Polish Constitutional Court to allow an interpretation involving operations of the armed forces to assure the state’s internal security. Though the remaining ambiguity could not entirely be clarified, at least some awareness towards coherent difficulties seems obvious. Also in Italy discussions concerning admissible mission of the armed forces are quite common. Though Italy defines the mission of its armed forces in its constitution as well, it is rather the contemporary government that decides about the admissibility of an operation by parliamentary statute in practice. In addition, the parliament needs to specifically authorise most operations of the military. By doing so, the government disregards in a way the existing wording of the constitution that refers only to a defence of the patria. Noteworthy seems the minor impact caused by this debate, since procedural rules do not allow this case to be adjudicated before the constitutional court. Since Austria, Belgium, France, Hungary, Italy, Lithuania, Sweden, Poland, and the Netherlands present missions that are only seemingly limited by the

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constitution, serious limitations to admissible operations of the armed forces are thus only to be found in Germany and Spain.

b)

Missions Defined by Statute

States in this category are in particular Austria, Belgium (with the particularity of a royal decree), Denmark, Estonia, Ireland, Latvia, Luxembourg, Malta, Poland, Portugal, and Slovenia where first and foremost parliamentary statutes define the mission while considerable limitations are lacking in all states. Austria for instance limits the field of responsibility of their armed forces by means of a Federal Constitutional Act. As described above, Belgium determined a classification of operational modalities by royal decree, assigning different missions in regard to a certain political condition.573 These modalities cover almost every aspect of a military operation or engagement and define the actual mission of the armed forces in respect to the present condition of the nation. Denmark, Estonia, Ireland and Latvia enacted individual Defence Acts to define the scope of responsibility of the military. Though Italy defines the mission of the armed forces basically by the limitations given in the constitution, the Law No. 331 on “Rules for the Institution of the Professional Military Service” of November 14th 2000 designates additional tasks besides the defence of the patria to the military. Such tasks are mainly missions within the scope of peacekeeping operations. In such an event, the Italian Parliament defines the concrete assignment during its authorisation of the entire mission. But also the maintenance of public security under specific circumstances and the safeguarding during extraordinary events are tasks that add to the general mission of the Italian armed forces. Though not by royal decree but by parliamentary legislation, the definition of the Luxembourgian armed forces mission was laid down in the amendment to the Law on the Organisation of the Armed Forces of July 23rd 1952.574 According to this amendment, the mission of the armed forces covers various types of operations, including the defence of the nation as well as the protection of civilians and institutions or a participation in international operations within a peacekeeping operation. Malta and Portugal also follow the concept of enacting an Act on Defence to define tasks and missions of the national armed forces. In comparison to that, Poland holds a dual definition: besides the provision in the constitution, several parliamentary statutes limit the scope of admissible operations. While the wording of the constitution is regularly interpreted in a rather broad manner, various statutory provisions complement the constitutional norm. To name but a few are the Statute on the General Duty to Defend the

573 Royal Decree of July 6th 1994, Arreˆte´ royal portant de´termination des formes d´engagement ope´rationnel et des activite´s pre´paratoires en vue de la mise en oeuvre des forces arme´es, Moniteur belge, 20 juillet 1994. 574 The amendment dates from August 2nd 1997.

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Republic of Poland,575 the Statute on the Employment and Stationing of Polish Armed Forces Abroad576 as well as the amended Police Statute of 1990. Latter assigns the mission of supporting Polish police forces in case of their inefficiency to the military. As stated beforehand, this mission requires a decision of the President at the request of the Prime Minister. Equally important in this context is the Polish Defence Act, appointing the task of defending the sovereignty and independence of the Polish Nation to the armed forces.

c)

Missions Defined by Executive Authority

Governmental or administrative acts are the exclusive way to define the mission of the armed forces in France and the United Kingdom. Yet these executive acts do not significantly limit the operational possibilities. On the contrary, decisions of the executive authority entail more flexible and rapid reactions of the government. While in France an ordinance solemnly specifies a rough and general outline of the military objective, any further definite outline is conceded to the current authorities. Consequently, a white paper exposes the present vital interests, thereby formulating and defining the mission of the armed forces.577 This approach is commonly used in several countries within the EU, rendering the final definition of the mission of the armed forces a purely political decision instead of a legal act. Particular countries following this approach are the Czech Republic, France, Greece, Sweden and the United Kingdom where a mere mentioning of the existence of armed forces in the constitution is not only completed but almost substituted by governmental acts such as ordinances. A comparable approach as the French can also be found in the United Kingdom where the Minister of Defence outlines the tasks of the military by administrative act. A singularity of the United Kingdom is the royal prerogative and its implication on the decision to deploy armed forces.

III.

Preliminary Findings: Security Forces in Categories

After this brief review of existing security forces in Europe, the conclusion can be drawn that all EU member countries divide their need for security into at least two, but no more than three institutions. In the first case, the security tasks are shared between the armed forces and the police, in the latter case, an intertwining hybrid institution like a gendarmerie or a national guard is constituted, though in some cases the hybrid institution is again divided into certain subunits. Countries holding a gendarmerie, such as France and Spain, adapted a dual police system at a national 575

Law of November 21st 1967. Law of December 17th 1998. 577 The present White Paper (“livre blanc sur la de´fense”) dates from March 1994. 576

III. Preliminary Findings: Security Forces in Categories

187

level and divided the areas of responsibility between the two police systems into categories of larger cities and rural areas. Reason for this is the fact, that Gendarmeries tend to face other types of threat or situations which can be characterised by a higher degree of hostility or instability than the civilian police units usually do.578 Typical functions of paramilitary forces within the national territory are thus the maintenance of public order, threatened by serious internal disturbances, riots, and terrorism. This depicts their quality as a more muscled instrument than ordinary police but less robust than armed forces and reflects their intermediate positions between those two. Nevertheless, their mere existence seems somewhat at odds with basic principles and achievements of a modern democratic nation-state.579 This impression is intensified by the frequently inglorious roles the gendarmeries played in the past.580 As a consequence, militarised police forces were more often associated with a threat to democracy and civil liberties rather than with a force safeguarding these values. Various attempts have been brought forward to revise these impressions, such as in Germany, where creating a strict separation between the police and the armed forces has been induced by historical reasons. These attempts also included the downsizing of the Bundesgrenzschutz weapons stockpile. But just because they combine typical characteristics of the police and the armed forces, the paramilitary forces have come to play a significant role in the fields of border control, in peace-support operations as wells as in the fight against terrorism and organised crime. And as pointed out above, the successes and accomplishments of the paramilitary forces within these key areas have led to a growing popularity of these intermediate forces, a development, which is reflected by the transformation of the border control forces in the former communist states in Eastern and Central Europe. It is also mirrored by the various attempts to create a European Gendarmerie Force and the multilateral cooperation between gendarmeries in general. In recent times, the call for a stronger paramilitary unit has become louder within the European Union. According to the emerging significance of gendarmerie and paramilitary forces, there is an obvious need to integrate these instruments into the security agenda of the post-Cold War era. The question behind this is one of how to arrange with the traditional limitations between internal and external security and if transgressing the principle of differentiating the instruments police and military is worth the benefit gained thereby. To this respect, Belgium has taken a clear and somewhat opposing decision. Their long-standing and well-reputed Gendarmerie recently became integrated into one police service, underlining the need for community policing and the incompetence of paramilitary units to cope with such issues. Though the rise of the Gendarmeries has just begun in some parts of Europe, 578 Derek Lutterbeck, “Between Police and Military – The New Security Agenda and the Rise of Gendarmeries”, Cooperation and Conflict: Journal of the Nordic International Studies Association, Vol. 39 (1) p. 47. 579 Derek Lutterbeck, “Between Police and Military – The New Security Agenda and the Rise of Gendarmeries”, in: Cooperation and Conflict: Journal of the Nordic International Studies Association, Vol. 39 (1) p. 51. 580 e.g. the Spanish Guardia Civil trying to provoke a coup in the year 1981.

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A Comparative Law

the Belgian decision might ring in the fall of Gendarmeries, at least when it comes to policing urban areas and communities. The acknowledgement of other countries to these shortcomings of the Gendarmerie can to some extend be concluded from the concurrent existence of municipal police forces alongside paramilitary units. However, the developments following 9/11 forced many countries to the conviction that there was a need for a more robust instrument than standard police forces. Though this reasoning might well be understandable, it carries an inherent likelihood of putting civil liberties at risk. Before this background, a system of subordinating an especially robust police force under an entirely civil command bears considerable advantages.

B

Operational and Institutional Consequences

This chapter turns to operational and institutional difficulties of the division of labour between armed forces and police forces, especially during joint operations abroad. Akin as both institutions might seem on the first glance, their partial likeness does not lead to a major consubstantiality since – from a socio-organisational perspective – they differ largely. Consistently, police organisations cannot adopt military tasks just as traditional military organisations cannot adopt police tasks without any consequences. An application of armed forces to conduct “constabulary” tasks as a typical feature of peace-support operations thus tends to result in tensions and a general predicament. A possible rescission of the principle of strict separation between armed forces and police forces, its political implications and a potential need to expand the tasks of the Federal Police are additional focal points of this chapter.

I.

Reflections of the Principle of Separation

1)

A European Perspective

The German principle of strict separation buckles under the pressure of international as well as internal developments. As for European developments, mainly three reasons for an international pressure are currently presented.1 First of all, the experience of the armed forces gained during deployments abroad shows the exigency to reconceive existing procedures. Safeguarding internal security abroad is currently the most important mission of the Bundeswehr. This mission calls for a more police-orientated training of the units deployed abroad. The above-depicted difficulties are quite unfamiliar to other European countries since many have specific military units with permanent

1

Jose´ Martinez Soria, “Polizeiliche Verwendungen der Streitkr€afte”, in: DVBl (2004) p. 597–606 (597 et seq.).

K.E. Lioe, Armed Forces in Law Enforcement Operations? – The German and European Perspective, DOI 10.1007/978-3-642-15434-8_2, # Springer-Verlag Berlin Heidelberg 2011

189

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B Operational and Institutional Consequences

assigned police-related tasks at their command.2 The criterion whether a unit has to be regarded as being of a military nature is the for one thing the obligation of having to report to the ministry of defence as well as the armament of the units in question.3 Another criterion is the orientation of the disciplinary code, the training applied and the command structure by military law. Made possible are these kinds of specific military units by not restricting their scope of deployment to the interior of a state. Due to the German’s model of strictly separating police forces from armed forces, no such specific military unit with permanent assigned police related mission was constituted. The Feldj€ ager, Germany’s military police, have no authorisation over the civil population though they are authorised to issue certain directives, e.g. in relation to military units moving in queues and the accompanying blocking of public roads. Though its character has been subjected to certain discussions, it is quite clear that the Federal Police never represented a true military contribution. Secondly, the conception of a European Constitution clearly demonstrates that the principle of strictly separating police from the military cannot be regarded as unquestionable and a matter of course from a German point of view. Since the draft includes a provision committing the member states to act together in case of a terrorist attack or other catastrophe in one member state, this obligation calls for a contribution of all necessary means, including civil as well as military resources, tying up to the initiative of a European Defence Community.4 In such a case, member states will undoubtedly expect an adequate contribution from Germany, adding further pressure to the German constitution and its peculiar character. Thirdly, a quick glance at developments in neighbouring member states shows their engagement towards a common European Gendarmerie Force, EGF. Though Germany supports this initiative in general, it regards itself as being unable to participate.5 In addition, multilateral instruments such as FIEP speak a plain language of the degree of comprehension for Germany’s constitutional distinctions within the EU.6 Thus, from a European point of view, the continued adhering to the principle of separation should be well considered, although a sheer abolishment of the principle does quite certainly not solve all problems in one fell swoop.

2

Especially the Italian Carbinieri, the French Gendarmerie, the Spanish Guardia Civil, the National Republican Guard of Portugal as well as the Koninklijke Marechaussee of the Netherlands. 3 For example, the French Gendarmerie operates grenade launchers and armoured vehicles. 4 The European Defence Community (EDC) treaty was signed in May 1952 in response to West Germany’s rearmament but failed to obtain a majority in the French Parliament and was consequently never ratified, see BGBl. II. 1954, p. 343 et seq. 5 See the parliamentary inquiry 15/5923 and the reply of the German government, in particular answer to question no. 5. 6 The Association of European and Mediterranean Gendarmerie and Carabinieri-type Police Forces (FIEP) is open to non-EU member states, including the Turkish Jandarma as well as the Moroccan Royal Gendarmerie and the Romanian National Gendarmerie.

I. Reflections of the Principle of Separation

2)

191

A German Perspective

Several suggestions have been made to rescind or at least weaken the principle of separation during the last period of time, especially from right wing parties in Germany. Down to the present day, these suggestions have mostly been parried, though it is remarkable that the majority in the population does not seem to have any objections against the possibility of deploying armed forces on the internal.7 This may be attributed to the well-working principle in everyday life so that the majority of the population is not fully aware of the importance of the principle today. On the other hand, vast portions of the population in countries not maintaining a comparably strict separation are not dissatisfied with their national approach. Possible discontent may however be deduced from a general distrust towards police forces as experienced in Belgium. Latest approaches of a possible deployment of armed forces within Germany’s territory were the World Youth Day, the FIFA World Cup 2006 but also the G8 Summit of Heiligendamm 2007.8 These approaches in question were limited to assistance and consulting services. However, these services also comprised the protection from biological and chemical attacks by the provision of specialised units of the Bundeswehr, notwithstanding other controversial suggestions proposing the guarding and patrolling of premises by members of the armed forces.9 In the meantime, a consensus seemed established between the diverging demands of the Minister of Interior and the Minister of Defence. According to this, a deployment of 2,000 soldiers – mainly of the medical service – during the FIFA World Cup 2006 was seriously considered. The Minister of Defence affirmed his determination not to employ soldiers for guarding missions.10 Instead, the contribution of the Bundeswehr to a safe realisation of the World Cup was realised by the set-up of a rescue centre as well as the provision of large capacity rescue helicopters and the construction of a mobile tower at the airport of Stuttgart. In addition, AWACS surveillance aircrafts helped maintaining air traffic control in lower airspace. On request of the federal states, anti-WMD units were to be implemented to provide measures of reconnaissance and decontamination. Furthermore, a total number

7 Viola Neu, “Die Deutschen und die Außen- und Sicherheitspolitik”, in: Arbeitspapier/Dokumentation der Konrad-Adenauer-Stiftung 122/2004, p. 23–24. 8 The FIFA World Cup 2006 implies 64 matches with 32 national teams in 12 stadiums as from June 8th to July 9th 2006 and a total number exceeding 3.2 million visitors live in the stadiums. During the G8 Summit, 16,000 police officers were deployed to safeguard the summit while 1,100 military personnel provided logistic support and monitored the surrounding seaside and airspace. In addition, Recce Tornados of the German Air Force were deployed for photo-reconnaissance purposes. 9 For instance BT Drs. 16/359. 10 See the overview concerning the various opinions of political parties including that of the Minister of Defence Dr. Franz Josef Jung at http://www.tagesschau.de/aktuell/meldungen/ 0,1185,OID5224840_REF1,00.html, visited May 24th 2010.

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B Operational and Institutional Consequences

of ca. 6,000 police officers were quartered in barracks of the Bundeswehr for the time of the FIFA World Cup 2006. The constant efforts the Minister of Interior to deploy armed forces as back up alongside regular police forces during the FIFA World Cup 2006 have in the meantime appeared in suggestions to delegate members of the armed forces to the Federal Police in order to guard public facilities and conduct general security services.11 This approach provoked a clear and declining reaction from the armed forces and its association12 alongside a square refusal from the police forces.13 Also jurists expressed their disapproval and rendered the corresponding suggestion unconstitutional.14 Doubts concerning such a delegation of members of the armed forces to units of the Federal Police are justified with the provisions requiring a concrete danger and not just an abstract danger as given in case of the FIFA World Cup 2006.15 Additional doubts remain with reference to the Law on Civil Servants.16 These doubts refer to the requirement of a functional purpose (“dienstlicher Zweck”) to allow for such a delegation. This functional purpose however needs to be of a military nature. Thus, the sole purpose to support the police is rather of a police nature and does not comply with this requirement. The motivation of the Home Secretary may also be attributed to the higher costs of a police operation compared to a deployment of military personnel. According to the “German Bundeswehr Soldiers Association” (“Deutscher Bundeswehrverband”), the costs to employ a civil servant are 1.5 times higher than a similar deployment of military personnel.17 This salient contrast is said to be due to the higher age in grade of the typical police officer. In addition, the Bundeswehr itself regularly pays its deployments within the national territory at the occasion of natural catastrophes such as the flood of the Elbe in 2002 or the avian influenza in 2006. As a consequence, the German government under Chancellor Merkel temporarily limited their aspiring for a change of the German Basic Law to allow for an internal deployment of armed forces for the time being, since the grand coalition was unable to overcome doubts in the political landscape to support such project. Too broad seemed the persuasion and considered opinion within political circles to adhere to the principle of strict separation. Corresponding agreements have

11

See http://www.spiegel.de/politik/deutschland/0,1518,400058,00.html, visited May 24th 2010. See the reaction of Colonel Bernhard Gertz, President of the German Bundeswehr Soldiers Association (Deutscher Bundeswehrverband), http://www.welt.de/politik/article196836/ Bundeswehrverband_gegen_Objektschutz_bei_WM.html, visited May 24th 2010. 13 See the reaction of Konrad Freiberg, Chairman of the Gewerkschaft der Polizei (GdP), http:// www.rp-online.de/politik/deutschland/Doch-kein-Einsatz-der-Bundeswehr-bei-WM_aid_238957. html, visited May 24th 2010. 14 See the overview at http://www.deutsches-wehrrecht.de/WR-FussballWM2006.htm, visited May 24th 2010. 15 See Frankfurter Allgemeine Zeitung FAZ of February 2nd 2006. 16 See the summary at http://www.deutsches-wehrrecht.de, visited May 24th 2010. 17 Colonel Bernhard Gertz of the German Bundeswehr Soldiers Association in his report to the work group “Security Policy” of the FDP in the Bundestag of April 4th 2006 in Berlin. 12

II. The German Legal Ambiguity During Joint Operations Abroad

193

consequently not been able to make their way into the coalition treaty of coalition. Today, a growing political partition seems to favour an internal deployment of the Bundeswehr while discussions concerning a possible shooting of kidnapped civilian aircrafts evolve. More than before, the present government moves towards a softening of the traditional borderline between armed forces and police forces. Yet it is unclear whether these heated discussions will eventually lead to concrete changes in legislation. Analogical remarkably seems the fact that any plans to a further blurring of borderlines between internal and external security obviously do not come in favour of both members of the armed forces and police forces. Though single pragmatists from political entities have repeatedly forged the opinion to benefit from possible synergy effects of transferring reaction forces out of the military into police forces in case these reaction forces are not needed elsewhere, leaders of both forces have announced their reservation. Regularly, the experiences of other European countries are stated reason to take a rescission of the strict principle of separation of powers into consideration. Although most of the neighbouring countries do not have a comparably strict division between the security forces and roughly 280,000 police officers are under a military command and responsibility of ministers of defence in Europe today,18 no serious doubts concerning their democratic values are deduced from this issue. This is however a direct consequence of the current political situation. In case of a severe internal crisis in one of these countries, the detriments of the Gendarmerie approach with regard to civil liberties will quickly surface. At this point, the German approach of maintaining robust police forces under a civil command will prove itself valuable and advantageous.

II.

The German Legal Ambiguity During Joint Operations Abroad

After pointing out the different systems of borderlining the mission of the police and the mission of the armed forces, the analysis will turn to shortcomings in the practical deployment on joint operations abroad. At present, the Bundeswehr participates in concert with allied forces and other nations with over 7,000 soldiers in foreign assignments.19 As depicted above, the operations cover a broad range from the fight against terrorism to peacekeeping activities and humanitarian aid. Taking a closer look at the German constitution, the principle of strict separation does neither explicitly apply to foreign assignments nor does it exclusively confine 18

Statement of Hermann Lutz, former chairman of the Police Union (GdP) and member of the Bundeswehrkommission in his interview “Kein Grund, die verfassungsrechtliche Trennung aufzuheben”, in Deutsche Polizei, 6/2000. 19 The exact number of soldiers deployed abroad as of September 26th 2007 is 7,436 personnel, numbers provided by the F€ uhrungsstab der Streitkr€ afte.

194

B Operational and Institutional Consequences

itself to the national territory. This stands to reason, since foreign assignments of police and armed forces were not in the focus at the time of formulation of the constitution. But with an increasing number of assignments outside the national borders, time has come to evaluate the principle against this new backdrop. Basically, a principle of separation between the police and armed forces has almost everywhere been established. However, they vary largely in intensity. While Germany voted for a very strict separation of forces, other countries were satisfied with much more permissive regulations. However, no European country had any interest in suspending the distinction between armed forces and police forces. In fact, even countries with less developed borderlines between these services established some kind of division. Corresponding to these developments, also foreign assignments had from the beginning an unwritten principle of separation of forces due to obvious practical but also political reasons. Such political reasons become apparent when the withdrawal of troops is under consideration to avoid the negative impression of an army of occupation as witnessed in Iraq today. Substituting police forces remain regularly significantly longer in a post conflict setting than military forces do. Due to these reasons, the general principle of separation is very likely to endure the coming years. The spirit of this principle is to avoid social conflicts due to opposing sections of a nationality against soldiers of the same nationality. As it developed in Germany, it was to ascertain that never again Germans had to fight Germans. In the case of foreign assignments, this predicament will not emerge since armed forces of one country are not opposing their fellow citizens. The major prerequisite for a potential social conflict is thus not given in that case. Deviants from the general principle such as a political involvement of armed forces involve lesser risks for the cohesion of a society if soldiers and civilians belong to different nationalities. Insofar, the principle of separation during a foreign assignment may be handled less strictly than within the national territory. Remarkably, the general principle of separating the forces is in principle also maintained during foreign deployments. It becomes visible in the approach of graded or tiered deployment of soldiers and police forces. Characteristic feature thereof is the policy of deploying a green force first and to replace this green force step by step with a blue force, following a standardised pattern. Obviously, this replacement is intergraded, somewhat floating and comprises distinct overlapping that contradicts a strict compliance with the principle of separation. The hazardousness of such a deviation from the strict adherence to the principle is however limited. The primary deployment of armed forces abroad is covered by a situation that is in turn well comparable to a state of defence or a state of emergency within the country of origin of the troops. Parallel to a subsiding intensity of conflict, a decreasing number of soldiers are deployed while more and more police forces are brought into operation. Thus, the danger of acting as a negative role model by not abiding by a separation between armed forces and police forces abroad is to a great extent avoided. Also within the country of origin of the troops, a simultaneous deployment of police and armed forces is regularly permissible under certain provisions such as a state of emergency or state of defence. In fact, no country of this study prohibits a concurrent operation of forces under these circumstances but

III. Reappraisal of Assignment: Pitfalls and Potentials

195

pools its strengths to ensure optimal defence of the national territory. From this perspective, a concurrent deployment of police and armed forces must not necessarily imply a deviation from democratic principles. A close cooperation and division of responsibilities is as a basic principle by all means permitted. The challenge of abiding by democratic rules is however the question of how to construct legal provisions that govern the relationship and how to design the concrete cooperation during crises and peace. While a deployment of armed forces during a state of peace within the national territory must remain an exception, the declaration of a state of defence brings about distinct changes in authorisation and power of the armed forces. Such a shift in authorisation does not run contrary to democratic principles. Neither does a deployment of armed forces outside the national territory within the framework of a PSO as long as the prerequisites to despatch troops are met. Raising the comparable situation of a state of defence or state of emergency in a country, foreign troops mandated to enforce or maintain peace and public order have to comply with a comparable situation within their national territory and with parallel limitations. If one takes the segmentation into different “states” as basis for a reflection of a foreign deployment of forces, a transfer of this division seems suggesting. Operations that are permissible within the national territory are even more acceptable from a legal point of view during a deployment outside the national territory where the risk of provoking a conflict between parts of the nation and the national armed forces is inexistent. What remains however, is the risk of posing a negative example for the local awareness of democratic principles resulting from the seemingly distinct violation of such principles. On the other hand are advantages for the population of a graded reaction to different levels of aggression also quite palpable. According to the plan of PSO, armed forces that run the risk of appearing as occupational forces are step by step replaced by police forces, which in turn prepare a handover of authority and responsibility to local security forces. By demonstrating the limitations and the individual scope of responsibility of the forces, the understanding for a separation of forces might even become disseminated in the long run. A negative influence on the democratic development of the country may consequently be avoided by the approach to reduce the political influence as the violent situation abates. What remains however, are questions of how to distribute the tasks between armed forces and police forces during foreign assignments, how and when to transfer responsibility, how to deal with overlapping parts of the missions and whether to reassess particulars of an application.

III.

Reappraisal of Assignment: Pitfalls and Potentials

The challenges of security policy since the end of the Cold War call for readjusted and improved instruments of crisis prevention, crisis management and peace consolidation. Measures of crisis reaction are mostly applied for a short time and

196

B Operational and Institutional Consequences

require both mobile and forceful formations to cope with situations of conventional engagement, asymmetrical warfare and humanitarian aid. The notion of a “ThreeBlock-War” connotes the performance of all three tasks at the same time and at close quarters. During the phase of peace consolidation, forces that keep the parties involved from recommencing their conflict are needed, creating the framework in which consolidation of peace can be achieved. Post conflict situations on the other hand require police-like competencies more than they require military abilities. However, these police-related competencies may not be equated with police tasks, since conflict areas regularly demand other or additional abilities. Booby traps, mines and suicide attacks for instance are not manageable by means of standard police training and equipment. IED attacks are however just as little manageable by standard military procedures as conveyed in times of traditional symmetrical wars.20 Moreover, a sudden escalation of the situation cannot be ruled out, thus requiring a (para-) military potential or appropriate reserve. Conceptional goals need to be a continuum of capabilities encompassing conflicts of all intensities. This comprises matters of organised crime as well as violent demonstrations or engagements in high intensity combat. The forces employed are faced with elements of intelligence, criminal investigation, police-related and military tasks. It seems quite obvious, that one institution cannot cover this spectrum of tasks, and rather a division of labour within different organisations seems needful. A precisely coordinated configuration of the points of intersection is of particular relevance. Given the unpredictable nature of suchlike operations, structural redundancies at the points of intersection are indispensable. Both the armed forces and the police forces show a distinctive need for specialised skill in fulfilling their particular mission. Due to the unique nature of their tasks, both entities developed and adapted alike unique skills and capabilities to cope with the challenges borne by their mandate. These specialised abilities restrict however a possible mutual taking-over of tasks. However, experiences show that due to the inadequate numbers of police forces in international peace operations, quasi-police tasks like stabilising measures tend to get a military significance. Both the police and armed forces require an improved national and international qualification and preparation. In the light of these requirements, the Bundeswehr developed improved mission concepts with specified capabilities for various scenarios of escalation. The Bundeswehr places high value on the fact, that the abstract ability to cope with CRC situations does not imply an analogous assignment of duty. The maintenance of public security and order will also be the main mission of the police in times to come whereas the military perceives its own role as one of supplementary character.21

IED ¼ Improvised explosive device. Final Report of the Subcommittee “Weiterentwicklung der Inneren F€uhrung” supra, p. 8.

20 21

III. Reappraisal of Assignment: Pitfalls and Potentials

197

The riots of March 2004 showed distinctive shortcomings in training, equipment, and structure of the security forces deployed in the unstable region.22 According to official statements following in-depth reviews, various shortcomings in the cooperation and communication as well as operational deficits of the multinational cooperation within KFOR, UNMIK, UNMIK-Police and Kosovo Police Service (KPS) were detected.23 Reactivity was noticed to being impaired by the politically intended broad international cooperation.24 Existing command –, communication –and cooperation-structures proved an inadequately loadable choice while another major drawback was generated by a lack of a common language, diversity of national interpretations of the Rules of Engagement as well as “national caveats”. A review of the operational military concept in Kosovo, an adjustment of the structure of the forces deployed, an overcoming of the KFOR inherent “BoxSystem”, the so-called adjustment of “national caveats” and the consequential acquisition of resources for a graduated reaction during CRC matters, an amendment of the BWC, a revision of the operational orientation, an accentuation of the principle of military command of mission tactics, a preparation of a new concept of reserve, the generating of alarm reserves from the support forces, the implementation of “KFOR Restricted Areas”, an adjustment of preparatory training with an involvement of experiences and concepts of police forces, a consistent conduct of mission accompanying training, the intensified use of CIMIC personnel to achieve an enhanced networking to local societies, an enhanced intelligence, the establishing of liaison and monitoring teams, the intensified training of linguistic fluencies as well as an enhanced interoperability within NATO forces and combined preparatory training of NATO staff prior to multinational operations were the result of the evaluations. Most important however, was the realisation to enhance the cooperation between KFOR, UNMIK, UNMIK-Police and KPS. In accordance to the lessons learned, constant liaison elements, a combined situation centre, a “Security Advisor Group”, joint exercises and patrols were established.25 Though the Bundeswehr as well as NATO demonstrated an immediate reaction following the evaluations and arranged for a prompt adjustment of national operational procedures within the 8th contingent and a fundamental implementation of these experiences and revisions in the 9th contingent, the focal issue of a conceptual revision remains unresolved. Instead, existing capabilities to cope with CRC issues are widely fragmented. Yet both the future structures of the Bundeswehr and the Federal Police do not seem to reflect the required extents the adjustments made after these incidents concerning training and equipment. At the bottom line, the “lessons learned” in Kosovo 2004 still lack a clear and direct consequence in regard to a division of

22

See the Report of the Ministry of Defence concerning an assessment of the situation in Kosovo of September 20th 2004 and the NATO Report “Kosovo Lessons Learned” of April 22nd 2004. 23 Final Report of the Subcommittee “Weiterentwicklung der Inneren F€uhrung” supra, p. 5. 24 49 participating Nations in UNMIK-Police; 36 Nations in KFOR. 25 Final Report of the Subcommittee “Weiterentwicklung der Inneren F€uhrung”, supra, p. 6–7.

198

B Operational and Institutional Consequences

labour. Therefore, a discussion of a possible reappraisal of assignments as well as of practical consequences is by all means necessary.

1)

Exemplary Paragons

Current deliberations to deploy armed forces for a more police-like mission abroad are neither new nor unique in history. Corresponding considerations have lately been made during the Kosovo conflict. However, a precursor of such instrument was already established on German territory shortly after the Second World War. a)

U.S. Constabulary

Called “Blitz-Police” by the German population and “Circle-C-Cowboys” by their fellow GIs, the U.S. Constabulary were the first unit dedicated to the mission of restoring order and peace alongside the iron curtain with an AoR spreading from Germany to Austria. Starting point was the problem of how to reduce the number of armed forces in Europe but to maintain peace and stability at the same time. Reducing the number of soldiers was part of the demobilization as well as the fact, that the United States needed troops in other parts of the world. Being by far more cooperative than originally thought, the task set up by the German population facing the Constabulary was mainly refugee control and routine criminal activity. From end of October 1945 on, commanders in several regions of Germany began to set up district constabularies to establish exercise and operational procedures for a large constabulary force that was planned to follow. Main purpose of these units was to reinforce existing American and German law enforcement and to strengthen border security operations. Soon it became obvious that the appointed units needed to become more specialized since thousands of refugees tried to escape the Russian occupation in the eastern zone. This also applied to the tactics used. Therefore, the US Constabulary was officially established on July 1, 1946 and assumed general security responsibilities within the American zone. The units were formed from a mixture of cavalry, armoured, infantry and artillery units. The three brigades with three regiments each consisted of altogether 30,000 soldiers while their mission was to restore order, to keep the Russians in their own zone and to round up illegal border crossers and war criminals. After some gathering of experience in the execution of patrols, the German Land Police was once again rearmed in the border zone and the crime and refugee problems decreased. The task of the US Constabulary was considered as accomplished during December 1952 and the units were subsequently disbanded as the 14th Cavalry and 2nd Cavalry Regiments began to patrol the border which was from then on known as the iron curtain.26 26

http://www.grenzer.com/usconstab.htm, visited May 24th 2010.

III. Reappraisal of Assignment: Pitfalls and Potentials

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But even after the disbandment of the Constabulary units, US forces initiated “Joint Patrols” with German security forces. To foster a spirit of cooperation, US forces conducted patrols and shared intelligence with the West German border agencies. The most common joint patrols were conducted with the Zoll (Customs), the Federal Border Police and the Bavarian Border Police. These organisations were highly professional and knew every detail of their border area.

b)

Multinational Specialised Units

Another potential role model was established in recent years. In Bosnia and Kosovo, NATO combined constabulary forces from seven countries into the Multinational Specialised Units (MSU), anticipated to be highly effective. The first MSU was deployed in Bosnia/Herzegovina on August 2nd 1998 to establish full operational capability by the time of the first elections in succession of the Dayton Peace Agreement. Designed and established to bridge the gap between SFOR traditional military forces and civil police type units, this specialised force was organised alongside military lines and equipped to carry out a wide range of police and military tasks. The objective of public order operations also during multinational operations abroad is to solve situations of civil unrest through decisive intervention. This intervention must be at the lowest possible level of force. In a normal case, police and gendarmerie are these forces ensuring public order. Built up with police forces with a military status (thus acting under military command) and performing duties including civil disturbance operations, this type of force focuses on the civilian population, employs minimum force and – in the majority of the cases – consists of small units during operations. It was not designed to become a substitute for the BiH Police forces. Thus, it does not carry out any criminal investigation beyond the scope of the SFOR mandate. The Multinational Specialized Unit operates under SFOR Rules of Engagement within the mandate of Annex 1A of the General Framework Agreement for Peace (GFAP). Thus, its tasks are to contribute in providing framework for military security operations, to fill the public order security gap, to support the International Criminal Tribunal for the former Yugoslavia (ICTY), Office of the High Representative (OHR), European Union Police Mission in Bosnia and Herzegovina (EUPM), State Border Service (SBS) and Local Police, to conduct special information gathering, provide Force Reserve capability, support the military presence and to monitor activities in order to enforce compliance with the GFAP. The KFOR MSU has substantial experience in combating organised crime and terrorism. It possesses the human resources and investigative tools needed to analyse subversive and criminal organisations structure while providing prevention and repression resources to be used as a KFOR asset. The units conduct general patrolling operation to maintain a regular presence within KFOR AoR. These operations are in support of KFOR routine patrol activity and allow the MSU to interact with the local community whilst deepening their overall knowledge of

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B Operational and Institutional Consequences

evolving criminal and security issues of each area. Each detachment in KFOR AoR has a different strength depending on the public order and security situation of the area. The unit consists of one Regiment of Italian Carabineri, one Contingent of French Gendarmerie and one Platoon of Estonian Army. The MSU is directly under the command of COMKFOR. Its primary tasks comprise the maintenance of a secure environment, law enforcement in close cooperation with UNMIK, general gathering of information, the conducting of presence patrols, civil disturbances operations and counter terrorism operations, criminal intelligence and the fight against organised crime, performance of VIP escort operations, special police operations and investigation of crimes related to military security. Humanitarian activities are also an important part of the daily MSU operations. In the first half of the year 2004, the units carried out 43 humanitarian activities on behalf of 10,235 persons.27 Since 1999 the MSU have organised more than 250 CIMIC projects in Kosovo. These projects critical to the MSU, allow the forces employed to form close relationships with the citizens they protect. The MSU’s headquarter is located in Pristina. The SFOR MSU consists of 600 troops from different countries, such as Austria, Hungary, Italy, Romania, and Slovenia. Outlook for the future is that the Multinational Police Unit becomes an Integrated Police Unit. Following the mandate handover from NATO to EU by end of 2004, the capability remained in Bosnia and Herzegovina to ensure the continuing safe and secure environment and to support local Law Enforcement organisations in fulfilling their tasks. Their field of operation in this aspect is similar to the SFOR MSU. Contributing nations are Italy, France and Estonia. In comparison to modern units like the MSU, the US Constabulary had a notably similar task. It was their mission to maintain order and peace during an occupation and to ensure a smooth transition to the autonomy of the occupied state. Daily operations resemble the scope of responsibilities of police officers and members of paramilitary units during foreign deployments as well as of members of armed forces engaged in peacekeeping operations. The MSU personates the exemplary hybrid organisation between the two archetypes of security forces. Since bridging of the gap between armed forces and police forces was moving cause for its establishment and its organisation is influenced to a high degree by the military, the MSU can neither be defined as being of typical military or civilian nature.

2)

Repercussions on the Bundeswehr

Members of the armed forces found themselves participating in numerous peacekeeping and peace-support operations lately. Nevertheless, these missions bred a 27

http://www.nato.int/sfor/factsheet/msu/t040809a.htm, visited May 24th 2010.

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dual-role tension, since many soldiers feared an undermining of their military status when executing tasks that traditionally did not belong to a military mission. However, by introducing specialised training centres and programmes, these objections could widely be silenced. Today, armed forces are regularly engaged in international peacekeeping operations confirming the power, which is later transferred to national instruments and institutions, re-established in the time being. If peacekeeping and peace-support operations are regarded as a “modern variant of imperial policing albeit for nobler ends”, it seems at least questionable, if the neutrality required can still be obtained by confining employments to operations outside the national territory of the participating armed forces.28

a)

The Choice of Force

Police-related tasks can basically be executed by Stabilising Forces of the Army29 or by units of the Military Police30 since Land Forces are more likely qualified to execute CRC tasks than Naval or Air Forces. However, CRC operations are only one of several core tasks that military forces deployed on foreign assignments are faced with. The existing structures are currently undergoing a distinct transformation, which, according to the planning, is to be completed in the year 2010. This transformation was commenced in 2004, aiming at a reconstruction and reorganisation of the Bundeswehr and a classification into three categories: Response Forces31 for multinational high-intensity operations and to apply measures of peace-enforcement to a militarily organised opponent, thus creating the basis for peace-stabilising measures; Stabilisation Forces32 for peace stability measures in low- and mediumintensity operations, thus reflecting the Bundeswehr´s typical deployment; Support Forces33 to support all operations and ensure routine duty operations of the Bundeswehr at home.

aa)

Stabilising Forces of the Army

Presently, military authorities follow a concept of redundancy, since future operations are anticipated to necessitate a concurrent or tiered deployment of response forces and stabilisation forces. This “operational interaction” calls for a – at least 28

Larry L. Watts, “Whose Professionalism? Separating the Institutional Roles of the Military & Police”, Conflict Studies Research Centre, 2001, p. 12. 29 “Stabilisierungskr€afte des Heeres”. 30 “Feldj€ ager”, as entity of the Joint Service Support Command (“Streitkr€ aftebasis”). 31 About 35,000 soldiers; 20,500 of which are members of the Army. 32 About 70,000 soldiers; 36,500 of which are members of the Army. 33 About 106,000 personnel (to include 40,000 undergoing training at any given time); 26,300 of which are members of the Army.

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partial – redundancy in capabilities. This connotes however, that the stabilising forces need to be trained, equipped and structured not only to match actual conflict scenarios, but to be also enabled for combat of combined arms, up to brigade level. Operations on this level are well comparable to current campaigns in Iraq. Accordingly, stabilisation forces will be equipped with combat tanks, APCs and armoured howitzers. At the same time, stabilising forces need to stand-by for their secondary role, the present tasks of patrolling, establishing of checkpoints, CRC, etc. A continued assignment of the major burden of CRC tasks to regular operational forces such as the army as their secondary or even third role does not seem reasonable, given the aspiration level of the mission. The mediation of CRC issues during current operational training is only a matter of secondary or third importance. Occurrences like the riots in Kosovo 2004 indicate however a clear and distinct need for intensified training to encounter relevant situations.34 By virtue of the high level of organisation of these riots, a handling “alongside” other tasks does neither seem feasible nor adequate.35 Even with the implementation of the new structure of the armed forces 2010, the capability gap concerning CRC capacities will not be bridged. Though the MP units dispose of CRC platoons and consequently of adequately profiled police-like forces, their conceptual concentration on special operations inhibits a successful bridging of the quantitative dimensioned capability gap. A personnel factor of ca. 360 soldiers does not meet the demands of present operations abroad. In addition, the fragmentation of the existing CRC capabilities within the single battalions is far from ideal. During an operation, CRC forces are likely to be deployed not only on platoon level but also within the framework of a company or battalion. Beyond these requirements, the CRC forces need an integrated and standardised command by means of a specialised CRC staff as well as standard and constant training above platoon level. Today’s scope of duty of the stabilisation forces has to be critically evaluated as being quite broad. If additional tasks are assigned to the army, repercussions on the quality of the mission are bound to occur. Even if the focal point of the stabilisations force’s capabilities is altered and shifted towards matters of CRC, this approach runs the risk of forfeiting skills and competencies in the range of engagements on brigade level. These skills are however needed to ensure a smooth transition between the response forces and the stabilisation forces. Thus, a substantial benefit from a transfer of responsibilities to the army as far as CRC issues are concerned cannot be expected. At the bottom-line, the new structure of the army “Neues Heer” does not make a substantial contribution to the necessary bridging of the capability gap. In the face of present operational requirements, it inadequately reflects the demands of the 34

See Human Rights Watch Report “Failure to Protect: Anti-Minority Violence in Kosovo, March 2004”, http://hrw.org/reports/2004/kosovo0704/kosovo0704.pdf, visited May 24th 2010. 35 See the adverse answer of the Federal Government to question No. 12 concerning CRC equipment of the units operating in the Provincial Reconstruction Teams (PRT) Kunduz and Feyzabad, BT Drs. 15/3908, p. 4.

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operational contingents by overly concentrating on the higher end of the capability spectrum of the stabilisation forces, in particular combat of combined arms. Arriving at the conclusion that it seems scarcely reasonable to further diversify the already broadly based capability profile of the stabilisation forces, a transfer of CRC assignments to the army is barely advisable.

bb)

Military Police

At a first glance, an execution of CRC tasks by military police forces might seem to be a more practical approach than the employment of stabilising forces of the army. This impression is fostered by the inherent character of general military police forces, performing per definitionem more police-related tasks than standard armed forces. Additional advantages can be expected from the structure of the Joint Service Support Command. A participation in the EGF would also be most easily accomplished with the military police forces. Existing CRC platoons could act as a nucleus of the needful CRC formations. Again, this proceeding calls for a bundling of the single platoons in one battalion. Moreover, a considerable growth in personnel would be required. Medium-term goal would be a strengthened/reinforced MP regiment with a number of ca. 2,000 soldiers to participate in a large portion of the German share of EUFOR.36 This approach would ensure consistent training and command and at the same time enable the staff to hold ready the necessary expertise. On the other hand, this approach contradicts the distinction between military and police structures, entailing a considerable coordination expense and subsequent friction losses.

b)

Training and Equipment

After the occurrences in the Kosovo in March 2004 and subsequent domestic discussions concerning a deficient fitting,37 the German Contingency was additionally equipped with “non-lethal weapons” to avouch for graduated reactions.38 This so-called CRC equipment involves shields, batons, water cannons and tear gas. In order to allow for such a use of tear gas and other specific Riot Control Agents 36

This MP regiment would not provide for the whole contingent, but replace the operational forces of the Army. Given a multiplicative factor of 4 (training, operation, post processing, reserve) the total number of would summate to 2,000 soldiers. 37 See interpellation BT Drs. 15/3531 concerning consequences of inadequate equipment during the riots in Kosovo 2004 and the answer of the German Government in BT Drs. 15/3599. 38 During the riots of March 17th and 18th 2004, 19 people were killed, over 900 wounded and more than 4,000 expelled. KFOR estimates a number of 30–50,000 participants in these violent unrests, see Human Rights Watch Report “Failure to Protect: Anti-Minority Violence in Kosovo, March 2004”, supra.

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B Operational and Institutional Consequences

(RCA), the existing provisions of the Biological Warfare Convention (BWC) had to be amended accordingly.39 Until such time as this implementation law entered into force, the use of tear gas and therefore the most effective instrument of Crowd and Riot Control was ruled out. However, some deficiencies of the amendment and its implications are still discussed today.40 Within the scope of operational training for the relevant secondary role, handling of the CRC equipment is conveyed and trained. Quite remarkably, the planning of the structure 2010 of the army does however not provide for units whose main focus lies in the scope of CRC. Thus, issues of CRC are very likely to remain a matter of secondary or even third role in the future. As distinguished from the above-mentioned planning of the Army, the new structure of the Joint Service Support Command arranges for original CRC forces for the first time. All nine battalions of the Feldj€ ager will in future have one CRC platoon at their command.41 These platoons are designated for special operations within the framework of CRC operations of the Army, representing the first units of the Bundeswehr with a primary role in CRC. These units benefit from new personnel carriers currently in the stage of procurement, and a multifunctional design, allowing configurations to be utilised as an armoured personnel carrier for patrolling or as a water cannon vehicle for CRC issues. However, current capabilities of forces during foreign assignments are characterised by both quantitative and qualitative gaps. While the Feldj€ agertruppe supports the army with CRC specialists, the total number of ca. 360 soldiers is by far too little to be of noticeable impact. The capabilities of the supporting forces of the army in the field of CRC issues as their secondary or third role are consequently of a likewise secondary relevance and effectiveness. Closing these quantitative gaps by means of a new determined division of labour remains the most pressing need as far as foreign deployments are concerned. But also qualitative gaps need to be filled. It is a general perception that peacekeepers need to be trained and educated more intensively about the political, judicial and human rights aspects of their presence.42 Since the armed forces are able to deploy rather rapidly, they are the first to face the disintegration of local law and order framework in a conflict area. Though civilian police forces posses the appropriate expertise, they are regularly called in too late and take up their employment in a too haphazard manner.43 There are manifold reasons for this factor. For instance, civilian police forces need a safe or at least to a large extent 39

Federal Law Gazette 2004 I, p. 2575. ¨ nderung See Hans Wolfram Kessler “Krieg ohne Tr€anen? Reizstoff f€ur die Bundeswehr – Zur A des deutschen Ausf€ uhrungsgesetzes zum Chemiewaffen€ubereinkommen”, Humanit€ ares V€ olkerrecht/Journal of International Law of Peace and Armed Conflict, 1/2005, p. 4–10. 41 With a total number of ca. 360 soldiers. 42 International Peace Academy Workshop Report, “Managing Security Challenges in PostConflict Peacebuilding”, 22.–23. June 2001, p. 7. 43 Annika S. Hansen, “From Congo to Kosovo: Civilian Police in Peace Operations”, Adelphi Paper No. 343, International Institute for Strategic Studies, Oxford 2002. 40

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an already stabilised environment to operate.44 In addition, operational planning is often incomplete or inadequate due to a lack of crucial information. To this respect, armed forces present a much higher degree of autonomy. Their structure and chain of command is originally construed to be very self-contained in order to ascertain viability and thus to guarantee maximum effectiveness. Yet the armed forces are forced to alter their tactics to some extend. As for police tactics, the military has to adopt new roles to ensure reactions fitted to the need of peace support operations that allow for a graduated response to non-traditional war scenarios. But then, also police forces regularly show distinctive shortcomings in training and experience when it comes to coping with a war-torn society and the imminent level of violence when deployed. This qualitative shortfall is even amplified by a quantitative shortcoming of police forces during foreign assignments. Most police forces experience significant difficulties in recruiting and maintaining adequate numbers of civil police officers for sustainable employments abroad.45 Additional difficulties are raised by the absence of dialogue and exchange on a potential doctrine for policing missions. Likewise missing are ambitions to determine standardised operational procedures. These characterisations come in distinct contrast to military traditions where clear separations between the scopes of doctrine, rules of engagement and operational planning are maintained. Military doctrine provides parameters that outline the limits to engagement and manner in which troops may engage. Within the doctrinal parameters that apply to all operations, specific ROE are set for a particular peacekeeping mission. The discrepancy between the police and military is highly problematic as it leads to misunderstandings during the planning and implementation stages of a joint operation. In the face of high levels of violence and crime in a conflict area, interventions by security forces of any kind need to be cooperated ever more closely. In short, the potential and necessity for close cooperation between the military and the police are clearly undermined by the lack of common language and the misunderstandings that result.46 At the bottom-line, armed forces identified the need to adjust their approach to civil crises and unrest. As illustrated above, the military is faced with qualitative as well as quantitative gaps that call for an adaptation. Though the implementation of the general principle of the Three-Block-War is a considerable success as far as training is concerned, it remains a balancing act to assume police tactics while retaining self-containedness at the same time.

44 Provision for a foreign assignment of the Federal Police, see http://www.bundespolizei.de/ cln_161/nn_251814/DE/Home/02__Aufgaben/sonstige__Aufgaben/sonstigeAufgaben__node. html?__nnn¼true, visited May 24th 2010. 45 Annika S. Hansen, “From Congo to Kosovo: Civilian Police in Peace Operations”, supra. 46 Annika S. Hansen, “From Congo to Kosovo: Civilian Police in Peace Operations”, supra.

206

3)

B Operational and Institutional Consequences

Possible Strategies for the Bundeswehr

Peace-support operations with a constabulary character are alien to traditional military organisations. The rationale of military organisation and their overall military nature contradict the basic principles of police organisations in many respects. At the same time, police forces and armed forces are often forced to work closely together during peace operations abroad. As to that, three strategies have been worked out, which are presented in the following chapter.47

a)

Transformation

The first strategy hereafter is the suggestion to transform the military in such a manner that it loses some of its conventional military capabilities. In particular, this requires a more flexible organisation and a broader and polyvalent training of the individual soldiers, aiming at an adjustment of their professional identity to the altered requirements. At the bottom line, the armed forces would mutate to a hybrid-organisation. To some extend, this transformation has already been initiated. In Germany, this process is actually labelled as the “Transformation der Bundeswehr”, giving some indication of the concept followed. However, a transformation of the military as deemed needed by this concept to develop into a hybrid organisation has not been objective of this initiative. The transformation has rather been induced by the apparent need to move on from the armed forces of the cold war era. According to this need, a drastic cutback in weaponries such as in tanks and a general turn from mass armies to specialised contingents took place. Though this is indeed a kind of transformation, it does however not stringently lead to a hybrid organisation.

b)

Retreat from PSO

The second strategy claims a sheer impossibility to adapt traditional military organisations to new demands. Logical consequence of this strategy would be the total retreat of armed forces from peacekeeping and peace-support operations as well as any police-related activity. This approach is backed by the development of the last years, where the share of civilian police officers has constantly increased while the number of military UN peacekeeping personnel almost halved. Yet it remains a question of definition whether to label an operation a peace-support operation despite its undisputable military character as currently witnessed in Iraq and at an increasing rate in Afghanistan. Given the increasing importance of NATO operations, a retreat from peace-support operations appears to be an unrealistic 47

Karl W. Haltiner “Polizisten oder Soldaten? Organisatorische Dilemmata bei der Konstabuli¨ MZ 3/2001, p. 291–298 (297). sierung des Milit€ars”, in: O

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choice: a proceeding in peace-support operations as hitherto, however with police officers instead of soldiers is unthinkable. Responsible for this estimate is the present way of approaching peace-support operations. Other approaches, such as the “Chinese Way” currently witnessed in Africa, might offer a way of conducting peace-support operations without despatching troops but relying on financial aid and incentive instead, however carrying the risk of neglecting the importance to strengthen a civil society instead of relying on financial stimuli. Western countries despairing of the seeming deficiency of their previous military engagements increasingly entertain doubts concerning traditional peace-support operations. Since such a drastic change in approaching crises is at least highly unlikely besides the uncertain virtuality of other strategies, by and large a total retreat of the military from peace-support operations seems entirely out of question. c)

Successive Combination

A third strategy aims at combining the advantages of police and armed forces by deploying them successively. During the initial phase of an operation, armed forces could secure and control a region by extensively deploying “hard power”. Especially useful could such a deployment be to suppress further confrontations between warring parties or to supervise a ceasefire. During the second phase, Gendarmerie and standard police forces could take over to preserve public peace and establish civil structures to ensure criminal prosecution while armed forces act as a stand-by resource in the background. This approach complies with the principle of despatching a so-called “green force” to pacify a conflict and to deploy a “blue force” to take over a stabilised country to help establishing local security forces and structures. There is much to be said for following this concept. Considerable advantages entail the retaining of fundamental military capabilities such as national defence. Likewise, the retaining of clear-cut and basic police functions can be rated as an allimportant feature of modern societies. The creation of an all-embracing instrument like a hybrid organisation cannot be considered as best. Instead, the adjustment of points of interface and the gradation during deployment seem to be an advantageous approach. Despite the apt expression “Transformation der Bundeswehr”, this does not entail the creation of a hybrid organisation but in the adjustment to enhance operations of successive combination. Downsides of this approach are however the generation of additional expenditures and the inevitable development of parallel structures. As to that, a certain degree of transformation seems indispensable to implement security forces that are able to efficiently participate in successively combined operations.

4)

Repercussions on the Police

In the light of the above illustrated unconvincing approaches to employ the Stabilisation Forces of the Army or units of the Military Police in matters of CRC, a more

208

B Operational and Institutional Consequences

reasonable proposal might point at an assignment of CRC tasks to police forces. Various officials and institutions support this approach.48 Both favour an added foreign engagement of Federal Police units to disburden the Bundeswehr. The scope of responsibility in question is – in a manner of speaking – of police-like character. It is not uncommon that soldiers of the Bundeswehr conduct tasks during their foreign assignment that would fall into the police’s scope of responsibility, if they were in Germany. Root of the matter is the deliberation to transfer tasks like patrolling, establishing checkpoints and accompanying children of ethnical minorities to other cities to police forces instead of further on assigning these matters to the military. The realisation of such idea would certainly be a remarkable change and would constitute a clear breach with traditions. Hence it is not surprising that a distinct reluctance is forming against these suggestions with the Federal Police. However, this approach should not be judged hastily before undergoing an indepth evaluation of shortcomings and alternatives. Member states of the EU currently deploy over 6,000 police officers within the framework of civil crisis management. Germany participates with a number of ca. 350 officers, ca. 120 of which are accounted to the Federal Police.49 The foreign secretary agreed with the EU on deploying a total number of 910 officers. The medium-term planning of the Federal Police seems to anticipate additional and intensified deployments of police officers abroad. Due to their longstanding experience in the field of CRC, valuable and profound attainments could gainfully be implemented in operations abroad. However, this would connote a distinct extension of tasks of the Federal Police. As stated beforehand, the Federal Police underwent an observable change in tasks from a domestic border police to a multifaceted Federal Police during the last decades, perceivable not only in its recently changed name. Thus, a further extension of tasks must not necessarily be considered as a fundamental impediment. Since 2005, a group of one hundred police officers has been established in Gifhorn, Germany, yet neither distinguishing themselves in training nor equipment from officers of the states or the federation. That implies, that the group of a hundred is lacking mine protected and armoured vehicles as well as any infantry training or equipment. Furthermore, any integration of the group in military structures is definitely ruled out by demand of the Home Secretary. A participation of the group in the EGF is likewise not intended. The formation of the group will be analogous to that of the Federal Police units. However, a modification concerning logistics shall ensure self-containedness during operations abroad. Personal precondition to participate in this group of a hundred are an unrestricted health condition, absolute readiness for an operation abroad and at least a 5-year affiliation with the

48

e.g. the former Minister of Defence Dr. Peter Struck and his colleague Otto Schily, former Minister of Interior, see the interview with Dr. Peter Struck in “Deutschlandradio” from June 13th 2005. 49 See the answer Under Secretary of State Lutz Diwell to a question of Ralf G€obel, MP from September 6th 2005, BT Drs. 15/5993, p. 10 et seq.

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Federal Police. Though the composition of the group was planned to be completed by the end of 2005, this deadline could not be met.

a)

Pro: Conceptual and Operational Advantages

The advantages of extending the field of responsibility of the Federal Police Forces to deployments abroad are by and large of operational and conceptual nature. Classified into various categories, these advantages are evaluated in the following.

aa)

Experience

In view of the operational demands during operations abroad, a deployment of the Federal Police seems to be a reasonable alternative to a continued employment of the Army abroad. Units of the Federal Police feature extensive experience in domestic CRC matters. Due to their scope of responsibility, the officers are primarily specialised in handling large groups and guarding objects. However, their organisational and mental proximity to standard police forces are likely to facilitate the fight against organised crime, which – as operating experience shows – accumulates in times after an armed conflict.50 The Federal Police asserts itself as being the more appropriate and matching instrument in contrast to military entities.

bb)

Easing the Transition to Civil Security Structures

A state in the progress of re-establishing its civil structures and capacities after an armed conflict is regularly confronted with the justified claim to above all adopt basic democratic values. These values are – inter alia – reflected in the distinct differentiation of armed forces and police forces. Often, a population got accustomed to a mixture of both as a typical measure of repression used by dictatorships or other oppressive regimes. Thus, Security Sector Reform (SSR) in post-conflict settings – security sector reconstruction – follows the same key principles as SSR in other contexts, namely (re-)establishing security forces which are able to provide public security in an effective and efficient manner and within a framework of democratic governance.51 Consequently, one of the most challenging tasks during a consolidation of peace is the demilitarisation of the conflict not only by confiscating weapons or the reintegration of combatants but also by reforming security forces and by a re-determination of civil-military relations. This connotes a 50

Based on operational experience, structures of organised crime tend to emerge distinctly during the phase of consolidation. These structures are not to be fought by military means but rather by means of criminal investigation and intelligence. 51 Alan Bryden, Heiner H€anggi “Reforming and Reconstructing the Security Sector”, p. 32.

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B Operational and Institutional Consequences

complete dismantling of old structures as well as an establishment with fresh recruits selected in an open and transparent process according to agreed standards.52 The task of re-establishing a legitimate governmental monopoly of coercive force aims at the creation of a post-conflict order able to ensure a peaceful settling of conflicts.53 Clearly, a swift and sustainable – and above all a plainly visible –disconnection of police and the military is the headstone for assuming democratic values as far as inner political neutrality of the armed forces is concerned in post-conflict scenarios. In this respect, a conforming division of labour in the particular country will act as a role model for the still weak democracy and is to be appreciated. However, some caution needs to be exercised in doing so. First, it is of principal importance to define the exact point in time for such an “Unfixing”. Doing so too early is likely to endanger the successful outcome of the complete operation and its results achieved by then. Exceedingly retarding the process of “Unfixing” will likewise have a negative impact on the process of democratisation since the mixture of security forces will leave a lasting imprint in the structure of the young nation. Secondly, some attention needs to be directed at the degree of multinationalism of the forces employed. While on a political level a preferably high degree of participating nations is desirable, the same does not unconditionally hold true on an operational level. In fact, experience shows a distinctly increased complexity of multinational operations. Especially during foreign operations under UN mandate, officers from less developed countries find it hard to maintain the same standards as their colleagues from higher developed nations. These fundamental impediments – beside structural and linguistic difficulties – proved to be of most obvious impact on coherence and quality of the forces´ capabilities. It is common practice for some 53 nations to participate in an international peacekeeping operation, each of them following their own “police philosophy” during the mission, some of them with no highly developed rule of law. This fact alone is noticeable on EU level already, but even gains in momentum under UN mandate. In this respect, the successful acting as a role model for a young and still unstable democracy seems hard to achieve. Again, a converse effect is achieved by less exemplary deployment of hybrid instruments as happened in Kosovo. Though the Special Police Units was well respected, some criticism concerning their composition remained. Made up of personnel from Romania, Poland, Ukraine, Argentina, Spain and other countries, not only police officers but also members of Special Forces and soldiers were integrated into these units while French Gendarmerie staffed their coordination office. Quite apparently, this constellation led to severe friction and inharmoniousness that was even intensified by the lack of common police training on EU level. At the bottom line, the creation of permanent and durable structures to ensure common 52

Souren G. Seraydarian “After Intervention: Public Security Management in Post-Conflict Societies”, Post-Conflict Security Arrangements, August 2005, p. 50 et seq. 53 Volker Matthies “Nation Building – Konsolidierung von Friedensprozessen in Nachkriegsgesellschaften”, Instrumente internationaler Sicherheit, Reader Sicherheitspolitik IV.2. 10/03 p. 1–8.

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standards on both operational and democratic level are absolutely indispensable to overcome the above depicted consequences of practical multinationalism. In addition, a demonstrated distinction between police and armed forces will ease the transformation to civil security structures in a war torn society. In a conflict scenario, armed forces usually play an obvious part in everyday life. Therefore, state authority is characterised mainly by military forces while civil security forces become less important or – even worse – are associated with the idea of a corrupt and repressing state apparatus. Experiences of such societies show that the return to civil structures is often hindered by the reluctance of armed forces to give up their power gained during the conflict and the simultaneous declining confidence of the population in the police forces´ ability to ensure public safety and order within the national territory. A demonstration of the inherent abilities of the police forces employed will help dissipate doubts in the society as far as means and capabilities of a national police force are concerned. It will also help re-building confidence in the rule of law and the integrity of the police. However, post-conflict settings are regularly characterised by a strong presence of armed non-state actors whose political ambitions and economic stakes will have to be taken into account in post-conflict peace building. The combination of a strong involvement of armed non-state actors and a weak role for civil society bodes ill for security sector governance. Be that as it may, it is still a distinct feature of post-conflict environments and, thus, a likewise distinct challenge for security sector reconstruction.54 Subject to the condition that abovementioned obstacles are considered efforts to overcome said impediments are initialised, the German Federal Police hold ready a tremendous advantage by following the concept of a robust police force under entirely civil command.

cc)

Expenditures: Personnel Costs

One aspect of immense practical importance when evaluating a possible extension of tasks of the Federal Police is the question regarding additional expenditures that may be expected. Given the applicable regulations, the salary of Federal Police officers is continuously paid from Chapter 0625 (Federal Police) of the Budget Act. Additional costs deriving from the foreign assignment are borne by the Chapter 0502 (Foreign Office) respectively Chapter 2302 (Federal Ministry for Economic Cooperation and Development) of the Budget Act. Police officers of the federal states who serve in a foreign assignment are delegated by virtue of } 123 BRRG for the time of their mission to the scope of responsibility of the Home Office. While their standard salary is continuously paid by the federal states, additional costs due to the nature of foreign assignments are paid by the Foreign Office. Since the personnel expenses of the Federal Police are to a large extend comparable to those of the Military Police, an extension of tasks would not affect 54

Alan Bryden, Heiner H€anggi “Reforming and Reconstructing the Security Sector”, p. 31 et seq.

212

B Operational and Institutional Consequences

personnel expenditures adversely. Proceeding on the assumption that the personnel core could be composed of two reinforced detachments exclusively for operations abroad, the operating expenditures seem commensurable. Additional forces could be made available by regular branches (“Einsatzhundertschaft”). Any additional costs due to the specific character of operations abroad are to be borne by the department of foreign affairs.

dd)

Multiple Assignments

Additional benefit may arise from the possibility to assign different units to the same task. Federal Police officers currently not deployed abroad can be utilised as “standard” Federal Police forces in the function of a riot police within the national territory. Problematic in this context however may be the attitudes and habits of the officers deployed abroad. It seems at least imaginable that officers – after a longterm operation abroad – do not maintain the same standards and procedures towards their fellow citizens as expected. Corresponding monitoring is thus mandatory. Such monitoring is in any case vital to ensure the same level of democratic values abroad as on the national territory in order to remain a role model. Insofar, a monitoring of the officers in regard to appropriate behaviour and exemplary standards is by no means superfluous or abdicable. Since the planning for deployments abroad provides for an operational period of 4 weeks to 6 months, the risk of getting too deeply involved in local habits and not perpetuating the national standards and procedures seems at least manageable.55 A short period of rotation seems indeed recommendable to avoid on the one hand an involvement into local concerns and on the other hand to ensure as much possible time at home for the officers. This helps preventing resentments due to long-term assignments and consequential difficulties in their personal environment. Examples where long-term operating times play a decisive role are the foreign assignments of armed forces. Psychological strains are an important charge to bear by the soldier himself and his family since many relationships break up under personal stress and frustration due to long-term deployments far off the previous centre of life.56 Foreign assignments are always a personal strain to both the officer and his family. Accordingly cautious is the willingness to put the integrity of a relationship or family at risk. A possible way of producing relief in that aspect could be the establishment of short or medium-term assignments. By keeping operating times abroad short, the willingness of police officers to accept a foreign assignment is likely to increase. 55

The average operational period of German police officers participating in UNMIK amounted to 10 months, BT Drs. 15/3599 p. 1. 56 Update of the Report on Posttraumatic Stress Disorder and its appendix by Parliamentary Secretary of State Friedbert Pfl€ uger of February 16th 2006, see Ausschussdrucksache (16.WP) No. 16(12)40.

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Yet, short-term assignments are no panacea since they regularly do not foster engagement of the officers on-site. If the operating time is too short, no own responsibility for the local issues will be established. This is often referred to as the “organisational memory” comprising the conservation of background knowledge and certain developments that may lead to critical situations.57 A high frequency of rotation proves to affect this knowledge and competences adversely. In addition, experiences show a clear need for personal relationships between the officers and the local authorities. In an environment that has longstanding been unstable to the core, these – for a western point of view – primitive ties are of vital importance for reliability and trust. Various experience e.g. with the police mission in Afghanistan show that local authorities find it hard to build confidence if their dialogue partner is replaced every few weeks. Post-conflict societies are regularly characterised by a deeply rooted understanding of personal trust as the basis to all future developments and achievments. Constancy in contact persons will definitely help building confidence by communicating a serious personal interest in doing so and help achieving the objective of establishing local police forces and civil structures. Additional drawback can be expected by the waste of time generated by the need of every single officer to adapt and to acquaint himself with the local characteristics and originalities. A mission in Afghanistan for instance cannot directly be compared to a mission in the Balkans. In the light of above-mentioned aspects, a compromise between long- and shortterm assignments and the inherent shortcomings and advantages needs to be established. A desirable medium-term assignment should bridge the gap between ineffective operations and the imposition of personal strain of the officers concerned as well as offer possibilities to monitor procedures and goals. One of the advantages of deploying units of the Federal Police on foreign assignments within the framework of peace-support operations is that units currently not assigned to a mission can be used to execute security tasks within Germany. Tasks for which the Federal Police is qualified for are those of a national riot police in the case of major events such as the FIFA World Cup 2006 or comparable activities.

ee)

Flexibility

Another advantage concerns the procedural framework of an assignment of federal police forces. Contrasting military contingents, a deployment of police forces on foreign assignments is by far less unproblematic to mandate than a military assignment since no parliamentary participation is required. This entails a more flexible application in both time-scale and political respect. 57

See the statement of Stefan Feller, UN Police Commissioner in Kosovo, Attachment No. 2 to the Final Report of the Subcommittee “Weiterentwicklung der Inneren F€uhrung” supra.

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b)

B Operational and Institutional Consequences

Contra: Legal and Institutional Impediments

Though an extension of tasks and a subsequent widening of the scope of responsibilities bears undoubtedly some distinct advantages compared to the present division of labour, a few questions still remain. These questions are of both legal and intuitional nature.

aa)

Parlamentarian Participation

After the decision to generally despatch the Bundeswehr to operations abroad, the call for a Law on the Parliamentary Participation became loud.58 Due to the German Basic Law and the Federal Constitutional Court, a decision to deploy the armed forces on out-of-are missions needs to be taken by the Parliament.59 This connotes however, that each individual case or any change in mandate – be it of regional or temporal nature – has to be assented by the German Bundestag. In the light of this rather circumstantial and lengthy procedure, attempts were made to simplify the way of proceedings, which at the same time maintained parliamentary rights.60 According attempts ended finally in the Parlamentsbeteiligungsgesetz.61 In view of an extension of tasks of the Federal Police to be deployed abroad, it seems arguable that a comparable legal regulation might be required to defend parliamentarian rights. It must however be noted, that the enactment of the Parlamentsbeteiligungsgesetz was not obligatory prescribed but rather of practical importance. From the point of view of the German Government such parliamentarian participation is neither needed nor planned to be adopted.62 This point of view is supported by the fact that already today officers of the Federal Police are being deployed on foreign assignments without such a legal regulation. On the other hand, deployments of armed forces on foreign operations were likewise conducted before the enacting of the Parlamentsbeteiligungsgesetz. Analogical to the aims of the Parlamentsbeteiligungsgesetz, a comparable law on foreign assignments of the Federal Police would have the two main goals of simplifying the procedure and including the parliament in the decision-making process. 58

See http://www.spiegel.de/spiegel/vorab/0,1518,243534,00.html, as well as the overview at http://www.deutsches-wehrrecht.de/, both visited June 2nd 2010. 59 Decision of the Federal Constitutional Court of July 12th 1994 concerning the deployment of German Armed Forces abroad, BVerfGE 90, 286. 60 Sylvia Charlotte Spies, “Parlamentsvorbehalt und Parlamentsbeteiligung bei Eins€atzen der Bundeswehr im Ausland – Ein Beitrag zur Diskussion um ein Parlamentsbeteiligungsgesetz”, Festschrift f€ur Dr. Dieter Fleck Krisensicherung und Humanit€ arer Schutz – Crisis Management and Humanitarian Protection, Berlin 2004, p. 531 ff. 61 Gesetz €uber die parlamentarische Beteiligung bei der Entscheidung €uber den Einsatz bewaffneter Streitkr€afte im Ausland (Parlamentsbeteiligungsgesetz), Law of March 18th 2005, entered into force March 24th 2005, Federal Law Gazette I. No. 17, p. 775. 62 Under Secretary of State Lutz Diwell, September 9th 2005, BT Drs. 15/5993, p. 13.

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However, the situation concerning the Federal Police is different from the outset. Whereas prior to the enactment of the Parlamentsbeteiligungsgesetz any mandate for a foreign deployment of the Bundeswehr or alteration of mandate required an individual acceptance of the government and the parliament, a deployment of the Federal Police is now already admissible on a sole decision of the government.63 Therefore, parliamentarian rights in a decision to deploy Federal Police officers are less crucial than in a decision to deploy armed forces. Since the parliament plays a less important part in the decision-making process, their rights do not play a comparable key role to the rights concerning a decision to deploy the military. Consequently, one main goal of such a legal regulation – to simplify the lengthy procedure of decision finding – will not be achieved in this case by enacting a law on foreign assignments of the Federal Police. Having said this, parliamentarian rights will not be shortened compared to the present situation if the government furthermore decides to deploy officers of the Federal Police in post-conflict areas.

bb)

Public Services Law

One stumbling block on the way to an extended mission of the Federal Police could be the German public services law. In view of the distinct change in the mission’s focal point, this aspect will gain in importance. The public services law does not allow for a en bloc deployment of federal police officers since only those officers who entered into service during the last 2 years are contractually obliged to go abroad during employment. The German Government stresses its belief, that also future foreign assignment of officers belonging to the Federal Police should remain voluntary.64 However, this point of view has lately been challenged by various politicians, calling for a termination of the principle of voluntariness to simplify the process of sending Federal Police officers abroad.65 Officials of the Federal Police on the other hand, reject this suggestion with reference to previous foreign deployments of the Federal Police where no shortage of applicants was experienced, thus rendering the proposal superfluous.66 But also the Federal Police shares the perception of lacking personnel for more foreign

} 8 I S. 3 of the Law on the Federal Police. Under Secretary of State Lutz Diwell, September 9th 2005, BT Drs. 15/5993, p. 12. 65 See the statements of Ulrike Merten, Chairwoman of the Committee of Defence, her colleague Rainer Arnold, spokesman on defence policy of the SPD Fraction, see http://www.rp-online.de/ politik/deutschland/SPD-will-Polizisten-zu-Auslandseinsaetzen-zwingen_aid_100111.html, visited June 2nd 2010, 66 See the statement of Josef Scheuring, Chairman of the Police Union (GdP) of the Federal Police, http://www.gdp.de/gdp/gdp.nsf/id/A9071471B7A71B9DC125704D00312815?open&Highlight¼ marschbefehl visited June 2nd 2010. 63 64

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assignments as a basic principle.67 Generally, the opinion prevails that the Federal Police fears a loss of domestic reputation if the Bundeswehr is deployed within Germany as discussed e.g. previous to the FIFA World Championship and a capacity overload if faced with additional tasks such as assignments abroad in post-conflict settings. Given a scenario that single police officers – since contractually not obliged – refuse to go abroad on a foreign assignment, a consequential splitting of their units seems inescapable. In this respect, a solution to the unequal treatment needs to be presented. One possible approach would indeed be an obligation concerning all members of the Federal Police to go abroad, comparable to procedures of the Bundeswehr. It is however predictable, that many officers concerned will not agree with such practice. On the other hand, the previous experiences with foreign assignments of the Federal Police do not necessarily forebode a shortcoming of applicants to go abroad. On the contrary, existing needs to find suitable candidates could be supplied to the present day even though the acceptance of a foreign employment is voluntary. It remains however doubtful whether increasing demands of personnel could be accommodated and at what price.

cc)

Inconsistent Development of the Federal Police

One yet unconvincing aspect of a expanding the Federal Police’s scope of responsibility to CRC issues is the inconsistency with the previous development. The institution “Federal Police” and its predecessor, the Federal Border Police, began their existence as a paramilitary entity to secure the eastern border. Since its officers lost their former combatant status and turned into a security force with distinctly more police-like features and a general police-related character, this development points clearly into a certain direction. In addition, the Federal Police lost most of its weapons stockpile during the last decades. Any other development apart from that to a civilian security force would certainly not be in accordance with this long-term trend. In case the Federal Police was now instructed to take over more military-like tasks and conduct specific rearmament, this present evolution of the Federal Police would be significantly contradicted. This reversal of trend seems hard to communicate to both the population in general and political decision makers. Given these reasons, a transformation – be it eligible as it may from conceptual and operational standpoints – into such a security force seems scarcely enforceable. However, a distinct turnaround of the trend should not constitute an ultimate obstacle. Germany currently witnesses a distinct transformation of the Bundeswehr, transferring its focal point from the national defence to peace-enforcement 67 See the statement of Hans-Joachim Zastrow, Chairman of the DPolG Association, http://www. rp-online.de/politik/deutschland/Widerstand-gegen-Schaeubles-Plaene-fuer-Bundespolizei_aid_ 419098.html, visited June 2nd 2010.

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operations abroad. This development alone shows a remarkable shifting of tasks: while the armed forces are bound to increasingly operate outside the national territory, the police forces tend to do the same. In the face of current discussions concerning deployments of the armed forces on the interior, a concurrent deployment of police forces abroad completes this trend. However, a successful transformation will take years to its completion.

dd)

National Balances and the Lack of Operational Standards

One of the major drawbacks on the way to an effective foreign assignment of the Federal Police is the lack of operational standards. While the armed forces have long since developed common standards to ensure smooth communication with forces of other nations, most European police forces adhered to their national procedures. Reason for this development is the isolated application of the police forces since their primal scope of responsibility covered solely and exclusively the national territory. Until recently, the conventional perception of the police forces basically implied no cooperation with police forces of other countries and consequentially no need to provide appropriate interfaces. Though some communication was established within the scope of Interpol, EUROPOL and other entities, still no direct collaboration with foreign police forces came into being. It was not until the first foreign assignments of combined police forces in international peace support operations that the need to change this lack of communication became obvious. Despite Germany’s support to develop coordinating codes of practice to ensure a maximum efficiency of national contributions on international police operations and the development of corresponding documents with an active participation of Germany in context with civil crisis management of the EU, the upkeep of these efforts is essential.68 Whereas NATO established ab initio common standards – normally classified into operational standards, materiel standards and administrative standards69 – to ensure a swift and smooth cooperation of the different armed forces, no such procedure was developed within the police forces. Reason for the armed forces to arrange for such common procedures was the well-spotted need to overcome gaps in communication as well as in diverging operational procedures. But standardisation of participating forces reaches beyond a sole alignment of procedures. NATO Standardisation Agreements (STANAG) also comprise regulations concerning principles governing the design of the individual load-carrying equipment of the combat soldier, the interchangeability of combat clothing sizes or common test

68

See the parliamentary inquiry 15/5923 and the reply of the German Government, in particular answer to question no. 18. 69 NATO Logisitcs Handbook, Chapter 17 “Standarisation and Interoperability”, 1711, see http:// www.nato.int/docu/logi-en/1997/lo-1709.htm, visited June 2nd 2010.

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criteria for NATO forces materiel70 but also concerning technical details like the NATO Ground Moving Target Indicator Format (GMTIF) to promote interoperability for the exchange of ground moving target indicator radar data among NATO intelligence, surveillance, and reconnaissance systems to name only a few.71 Among other things, operational standards may apply to such matters as concepts, doctrine, tactics, techniques, logistics, training, organisations, reports, forms, maps and charts. Standardisation of terminology is likewise essential for a collective understanding of documentation as well as definition and general communication. Any operation during a severe crisis requires clear and distinct terms as well as a precise allocation of tasks. Consequentially, all armed forces developed internal standards to enhance operational effectiveness in the past, mainly to ensure interoperability and communication between different units and branches. A distinct difference of NATO standards compared to internal national standards is the encompassing of armed forces of various member states. In addition, they improve the cohesion of the alliance and make a significant contribution to the effectiveness of its defence structure. During foreign assignments under the mandate of the UN like UNMIK, Standard Operating Procedures (SOP) of the Police Commissioner regulate the mission of the officers deployed. Yet these SOPs are changing from mission to mission. In addition, a single police component of a UN mandated mission may comprise officers drawn from up to 40 countries who have never met before.72 In its nature quite similar to the uncertainty of operational standards, the different national balances of the various participating nations turned out to be likewise obstructive to a successful mission. In correspondence to experiences of the forces deployed in Kosovo, the nations varied in their conceptual ideas and mental images as they did in the approach to obstacles or the implementation of new structures. Additional problems may arise out of the fact that policing practices and doctrines may widely vary. However, the above outlined benefits from common standards are completely missing. Due to the lack of a transnational organisation like the NATO that covers police forces of varying nationalities, no such standardisation could yet be agreed on.73 Problems arising from this situation are the lack of standardised terminology and the absence of interoperability indispensable for a seamless communication. A police officer requesting back up from his colleague of a different nationality will most likely encounter considerable difficulties in making himself understood. For one thing, his counterpart will not necessarily understand his language. An exhaustive fluency in English can also not be taken for granted. In addition, their individual systems of communication will probably not be

70

STANAG 2138 (Edition 4) of 31st 1996 and related documents (STANAG 2311; 2335; 2895). STANAG 4607 (Edition 1) of March 11th 2005. 72 “Report of the Panel on United Nations Peace Operations” United Nations A/55/305-S/2000/ oRV 62, p. 607–640 (639). 809, August 21st 2000, Za€ 73 Except for the European Police College CEPOL, which is responsible for standardisation between the EU police forces. 71

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compatible with each other, differing widely in frequency and encryption. To place a request via landline, the police officer needs a directory or an up to date index of names. Still, he does not know about the hierarchy and command structure of his contact, leading to a good chance of addressing an incompetent counterpart. All these possibilities and chances give rise to a significantly decreased effectiveness during foreign operations, which can even possibly lead to losses of life in extreme situations. Just as the armed forces learned to cope with the different structures and procedures of the forces employed, the police forces will have to follow the same pattern. The goal of such an agreement will be the development of common standards to ensure a smooth and effective cooperation of police forces abroad. The cohesion of police units deployed abroad and their capability to closely work together could be further enhanced if contributing nations were to develop joint training exercised by entering into regional training partnerships. A fair chance to achieve a higher degree of effectiveness by those means might be seen in the approaches of the European Gendarmerie Force (EGF) or multilateral institutions like FIEP. As long as Germany does not actively participate in these institutions for various reasons, a close cooperation to adopt common standards is highly desirable.74 At the bottom-line, the absence of operational standards beyond individual mandates between police forces of different participating countries hinders an effective cooperation of the police forces taking part in the mission. To this respect, police forces need to model themselves on international organisations such as NATO to enhance operational capabilities.

ee)

Fragmentation of Auspice and Competence

Adding the Federal Police to the set of tools at the scene of foreign assignments could likewise add to a fragmentation of auspices and competences of police and armed forces. As in Kosovo, competences regarding the scope of duties of the military and the police were regulated by virtue of various agreements between NATO and UNMIK-Police. As long as the police components were unable to autonomously take over their part of the responsibility due to not fully developed capabilities, the operations remained under military auspices. Meanwhile the police adopted a consultative and supportive role. By means of the agreements between the military and the police, the situation became inverted as soon as the capacity of the police forces increased, implying a reciprocal exchange of roles. In the light of this exchange, the military advised and counselled the police forces and generally acted as a supportive force. This approach however, led to regional varying 74

As illustrated above, Germany does not hold a paramilitary Gendarmerie, consequently no participation in these institutions is currently foreseeable.

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B Operational and Institutional Consequences

strategies: while some scopes of duty were already transferred in full to the police, other agreements were simply forgotten and thus completely left out of the picture. In consequence, the principle of agreement was not continued area-wide. Given the implications on the political level of the UNMIK-Police and the continuous rotation of personnel, full responsibility of the police was finally declared. Not least this confusing ambiguity of competences and auspices was blameable for the concurrent lack of communication and division of responsibility during the riots of 2004.75 A continued diversification of tasks by adding a new instrument to the existing complex setup during international peace operations carries in it the inherent danger of further complicating the distribution of responsibility among these instruments. At least on a national level, appropriate measures should be adopted to ensure a smooth and straightforward assignment of tasks. This requires a clear division of labour concerning tasks that arise during foreign assignments within national instruments as well as a standardisation of police operations and patterns on international level.

ff)

Insufficient Training and Equipment

One substantial though mainly practical obstacle on the way to an increased deployment of the Federal Police abroad is the insufficient training and equipment of the officers tasked with a robust and at some point even perilous mission. Most important shortcoming in the field of equipment is the lack of armoured vehicles. As experiences show, patrolling in insecure environment requires the provision of armoured personnel carriers and transportation vehicles. Though patrolling in this sense cannot be considered as a typical police mission, a different standard has to be applied since the area of responsibility is often highly unstable, requiring adequate measures to protect the officers in the field. Patrols conducted in a post-conflict area entail multiple – and for standard police operations uncommon – risks. These risks involve mines, IED as well as sniper attacks and ambushes during patrol.76 Even if these attacks might not be directly aiming at the patrols, the officers employed need to be safeguarded against such threats as arising from the weaponry used. Landmines for instance, remain a constant threat to both the local population and security forces even years after the settling of a conflict. The sheer number of landmines deployed only adds to the menacing scenario.77 As military

75

Determination of responsibility was reported to be vague and at times entirely ambiguous, see the statement of Stefan Feller, UN Police Commissioner in Kosovo, Attachment No. 2 to the Final Report of the Subcommittee “Weiterentwicklung der Inneren F€uhrung” p. 3 supra. 76 IED ¼ Improvised explosive device. 77 In Afghanistan, a total number of approx. 10 million landmines have been brought out during the last decades.

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experience shows, a great number of fatal accidents result from landmines and suicide attacks.78 Consequently, the patrols are in need of protected or even armoured vehicles that allow for a sound protection during full activity. Since the Bundeswehr is currently executing the patrols in question, their need for upgraded armoured vehicles79 or new acquisitions80 show a comparable situation. Likewise, the advantage of such an upgraded or improved vehicle can be attributed to the special situation and is demonstrated by the incident of November 2004 where one soldier survived a suicide attack with minor injuries due to the improved plating of his vehicle. Consequently, the Bundeswehr increased the number of armoured vehicles in their operations significantly. While approx. 10% of the vehicles operated during EUFOR and 15% during KFOR were armoured, almost half of the vehicles operated during ISAF are hardened.81 Beside the “Wolf”, the range of protected vehicles available to the Bundeswehr covers additional, heavily armoured models such as “ATF Dingo”, “Wiesel”, “Mungo” and “Fuchs”. At present, a total number of 716 armoured vehicles – including vehicles with a SSA and FSA configuration – are procured, 349 of which are currently within the operational contingents. In addition, 496 vehicles were retrofitted to meet the requirements of MSS and MSA configurations, ca. 330 of which are deployed in the mission contingents. Further vehicles are mainly held ready in the NRF/EU Battle Group Pool as reserve, for training purposes or are currently in the process of maintenance or conversion.82 One major problem in this context is the availability of these above-mentioned armoured vehicles for training in Germany. The pressing need for such vehicles on foreign assignments resulted in a shortcoming of vehicles in Germany. In fact, the need for these vehicles was identified at such a late stage that it brought about considerable delays in procurement and implementation. Yet the Bundeswehr put in great efforts to compensate for said delays by further accelerating their transformation into a modern and customised armed force. In Afghanistan for instance, the operational condition and consequent threat level is regularly determined. Based on various reports and operational 78 Exemplary cases in Afghanistan such as the incidents from May 29th 2003 (“Wolf”), killing 1 soldier and wounding 1; from June 7th 2003 (coach), killing 4 soldiers and wounding 29; from June 3rd 2005 (“Dingo 1”), wounding 1 soldier; from November 14th 2005 (“Wolf SSA”), killing 1 soldier and wounding 2; from February 22nd 2006 (“Wolf SSA”), wounding 1 soldier. The designations “SSA” (Sonderschutzausstattung), “MSA” (Modulare Schutzausstattung) and “MSS” (Modularer Splitterschutz) refer to the different levels of protection. A closer look at the political implications of these incidents are given by Gerhard K€ummel, Nina Leonhard “Death, the Military and Society – Casulties and Civil-Military Relations in Germany”, Sozialwissenschaftliches Institut der Bundeswehr, Arbeitspapier 140, p. 20 et seq. 79 E.g. “Mungo ESK” or the “Wolf” with its various levels of protection. 80 E.g. the “Duro 3” or the “GTK Boxer”. 81 Data provided by the Inspector for the Army, Lieutenant General Hans-Otto Budde on March 14th 2006. 82 Numbers provided by Under Secretary of State Christian Schmidt, Ausschussdrucksache Nr. 16 (12)110.

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B Operational and Institutional Consequences

reconnaissance and intelligence collections, the “Dress- and Vehicle Code” to “Force Protection” is defined by the Commander of ISAF. It determines for all participating nations where and when combat vests and helmets are to be worn or carried. In addition, it defines how vehicle movements are to be conducted and the number of soldiers of the particular crew. Furthermore, the determination covers the weaponry of the soldiers as well as its loading condition. Subordinate commanders can principally tighten these guidelines. As a direct reaction to the attack of November 14th 2005, the wearing of helmets and vests outside the camp was ordered. In addition, movements of vehicles were restricted to urgent and essential trips. All trips were ordered to include at least two vehicles, each manned with at least two soldiers while the weapons carried are to be fully loaded.83 These few examples clearly indicate what kind of endangerment and transformation the Federal Police would face when assigned with peace-support operations. However, equipment is only one of several shortcomings in aptitude of the Federal Police for an increase of foreign assignments: The local population and oppositional currents as presently experienced in Afghanistan may be of particular importance. It requires a substantial reorientation to adapt to a situation, in which every household possesses at least one firearm. To this regard, the Bundeswehr initiated corresponding preparatory training, covering both political and military factors in the operational area as well as awareness concerning religious, ethnical and cultural backgrounds. Such training proved indispensable for the forces abroad and is consequently likewise essential for a possible deployment of Federal Police forces. Though all officers of the Federal Police bring in extensive knowledge and experience as far as standard police tasks are concerned and even though German police officers that applied successfully for a voluntary assignment in an international peace operation are trained in advanced education facilities since 2002, they are unaccustomed to the cultural or religious background of foreign assignments.84 Considering that no common training scheme together with the Bundeswehr is planned, but police and armed forces already support each other in the preparation of foreign assignments for example by exchanging referents, a continual and improved training of the Federal Police officers deployed abroad is indispensable.85 At the bottom-line, the risks to run into mines or to be attacked by suicide attacks are by far not the only risks the police officers would be faced with. Some of these risks could be reduced by using enhanced equipment like armoured personnel carriers, others call for improved and adapted training of the forces deployed. Standard police training in this environment does regularly not suffice. In fact, 83 See the report of Parliamentary Secretary of State Friedbert Pfl€uger in the Defence Committee “Schutzkonzept f€ur deutsche Soldaten bei Auslandseins€atzen der Bundeswehr”, Ausschussdrucksache Nr. 16 (12) 24. 84 Advanced education facilities of the federation are located in Luebeck, those of the states in North Rhine-Westphalia and Baden-Wuerttemberg. 85 For applicable curricula, see European Council Document No. 8318/03, April 8th 2003 and No. 8508/20/05, May 31st 2005.

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even the CRC competency of the Federal Police gained during their numerous employments within Germany do not countervail against the “asymmetrical” threats. Prerequisite to an extension of tasks to multinational operations in postconflict settings is consequently the intensified training of self-protection issues and the general perception of a more robust and combative mission.

gg)

Expenditures: Material and Training

The illustrated need for enhanced equipment and intensified training will consequently result in raised expenditures. In fact, experience of the Bundeswehr shows the expensiveness of the procurement of armoured personnel carrier.86 Desirable features of such vehicles especially designed for police missions are the possibility to mount a water cannon, to offer enough room for a patrol unit and its equipment, and to offer adequate protection against landmines and small arms. In view of the tenuous equipment of the police with vehicles of this sort, an immense investment and procurement need has to be anticipated. A possible alternative to new acquisitions from scratch could be the sharing or taking over of equipment from the Bundeswehr. However, these acts of administrative assistance are subjected to only little scope since also the Bundeswehr is in urgent need of such equipment. Despite the political implications of a transformation of the Federal Police, massive investments would be needed to fit their needs while additional costs may be expected to arise due to a demand in enhanced training of the officers

c)

Action Alternative

Action alternative to the extension of tasks of the Federal Police and to a continuing responsibility of the armed forces for police-related tasks could be the establishment of a German Gendarmerie under the auspices of the Ministry of Defence. One drawback of this option is the length of time that it would take to complete the establishment of the units. Furthermore, it would create even more interorganisational interfaces that aggravate the calculably planning of a capabilitycontinuum in regard to CRC and policing issues. Major disadvantage of such an approach is however the incommensurability of a gendarmerie with the constitutionally prescribed principle of separation between military and police forces. In the light of this constitutional prescribed principle, the German security forces are composed only of standard police forces and armed forces. A unit with police qualities and military features under the command of MoD in Germany remains unprovided for. In addition, there is currently no need for the creation of such a force since robust police missions can satisfactorily be performed by the Federal Police Force. 86

E.g. the “Duro 3”, newest vehicle of the Military Police.

224

5) a)

B Operational and Institutional Consequences

Intermediary Findings Findings: Doctrinal shift

The mission of the armed forces and the police forces developed from a universal need for security forces. Due to the unique nature of their tasks, both evolved distinctive features, clearly and longstanding separating them from each other. Remarkably, their particular missions seemed to converge in the field of operations abroad lately, a field in which no clear borderline between internal and external security can be drawn. This blurring of security spheres is due to the intrinsic feature of post-conflict situations, often referred to as a “grey area” of intergradation from armed conflict to a stable and peaceful condition of a state. At this point, armed forces engaged in peace-support operations experienced the lack of a definite point to transfer responsibility to a less robust civil security force. Armed forces felt impelled to exercise tasks that normally fell into the field of duty of police forces, leading to an excessive utilisation and strain of the military and provoking a feeling of being exposed to tasks not originally competent for. The police on the other hand, considered themselves equally as being not originally competent for a mission that demands a notable higher degree of robustness and combativeness. In spite of the change in the general security situation, the police forces face equally altered requirements in their extended field of duty. Being well trained in a local and familiar setting and specialised in internal security functions, officers abroad are faced not only with an unacquainted environment but also with an unfamiliar culture in which they are mandated to perform external security functions. But the liaison of the armed forces and the police is only one of various questions. In addition, police forces are confronted with the pressing need to establish common standards due to the nation spanning engagements of international peace-support operations. These standards – comparable to common standards within NATO as far as military issues are concerned – need to be established at least within the 27 EU member states in order to lead the combined efforts to a successful mission. Speaking in terms of different forces, the ideal would be a standing blue force, ready to deploy immediately after a green force secured a ceasefire while comprising police, judicial and correctional elements. To achieve this goal, existing interfaces of the two forces need further strengthening. A harmonisation of the cooperation of the two forces in terms of complementing each other must be the operative word. This implies however the willingness for flexibility and adjustment on both military and police side. While the police needs to reform and enhance their deployment qualities in regard to timing, training and equipment, the military needs to overcome their reluctance to fulfil seemingly civilian tasks in the early stage of an operation. This calls for a doctrinal shift in the self-perception of both forces. Likewise essential is the preparedness to fill or at least minimise existing gaps in the local law and order framework. One potential model is the concept of military aid to civilian authorities, comparable to the common role of disaster relief, since

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some NATO Members have a military doctrine on carrying out public security functions. Another possible approach is the model of British Army’s town majors, holding the position of a judge during the absence of a local authority even though this kind of substitution represents a grave intrusion in national jurisdiction. The individual choice of strategy will in any case be dependent on the existence of remaining structures within the country. Abovementioned measures need to be accompanied by other arrangements such as an explicitly defined principle of “Unfixing” which is exemplary for the transition of military to civilian command during foreign assignments. “Unfixing” comprises the abandoning of a military protection task – for example the safeguarding of civilian facilities – and the subsequent substitution of military protection concepts for police protection concepts. This implies that – due to a change of the security status – the reasons that led to the “Fixing” are no longer existent. Using again the example of Kosovo, evaluations of the regional UNMIK-Police Commander and of a military counterpart served as basis for such a decision. These evaluations in question are a complex and intense process of analysing the present endangerment. Only if the findings of such evaluation allow for an “Unfixing” and thus a substitution of military units by civilian police units without endangering their safety, consequential measures are adopted. In Kosovo, the division of labour between armed forces and the police was conducted in accordance to the so-called “Northern Irish Principle”. Underlying perception is the experience gained in 25 years of military-police cooperation of crisis management in Northern Ireland. However, in regard to Kosovo this does neither connote an automatic capability of the military to conduct police-related tasks nor the belief that an equipment of the military with tear-gas implies an immediate improvement of the situation. Though the cooperation of police and armed forces has been intensified to a large extend in Kosovo and has distinctly gained in importance, the managing of demonstrations is still regarded as a central police mission under the auspices of the police while high intensity conflicts remain a military issue. Briefly said, the civil-military relationship has been subjected to a continuous change but has therefore gained in professionalism. The above-depicted shortcomings of the armed forces due to quantitative and qualitative gaps cannot satisfactorily be filled by their own means. In accordance with the German principle of separating the armed forces and the police forces, a consequent solution would be the increased provision of Federal Police officers for foreign assignments, able to disburden and relieve the armed forces from conducting police related tasks during operations abroad. Still, the Federal Police lacks personnel, training and equipment to satisfactory fill the gap. However, their conceptual and operational advantage over any deployment of armed forces in this scope of responsibility cannot be overrated. At the bottom line, an extended field of responsibility of the police forces towards increased deployments abroad will clearly lead to an enhanced selfreliance, a higher status of the officers involved and an improved cross-linkage within Europe’s security bodies. In concreto and in respect to the German Federal Police, this can be achieved by extending the scope of assignment to international

226

B Operational and Institutional Consequences

operations abroad and a concurrent advancement in training, equipment and international standardisation. Beside the unsolved legal question concerning an obligation of police officers to go abroad, one major impediment on the way to intensified deployments of the Federal Police abroad is the “theory of numbers” which suggests a recourse to the armed forces for financial reasons. The outstanding operational and conceptual advantages of the Federal Police are however not outweighed by an increase of expenses.

C

Conclusion

A detailed consideration of the basic allocation of responsibilities of security forces in Europe shows the absolute necessity to clearly mark down their missions amongst themselves. With regard to the principal mission, the maintenance and enforcement of law and order within individual states as well as the prevention of drug trafficking, trafficking in human beings, organised crime or terrorism is invariably assigned to the national police forces. Basically, armed forces and police forces illustrate the need for security forces and share quite a few similarities. Contrasting the military, police forces are much deeper integrated into the population and tied to the society that they are part of and which they serve. In addition, police forces are to a higher degree dependent on cooperation with the community whereas armed forces are much more conflict-oriented and concentrated on confrontation since their strategy to win a war in the Clausewitzian sense is conditional on an army’s ability to unleash maximum violence as a concept directly opposed to the constabulary requirement of the use of minimum force.1 However, the distribution of responsibilities within the individual security forces varies markedly. Especially within continental Europe, several countries adopted the French Gendarmerie model by introducing a hybrid and paramilitary entity, equipped and organised along military lines and – at least in part – subordinate to the national Ministry of Defence, thus creating a bipartite membership in both civilian and military government organisations. Other countries such as the United Kingdom followed almost traditionally a different approach where aspects of community policing were rated significantly higher. Main reason for the diverging approach is likely to be found in the historic setting of the countries. Whereas France was ridden by exceptional internal crises, which led to violent uprisings and a forced alteration of the form of government, the United Kingdom remained relatively unaffected by such currents and developed western ideals of property, capitalism and parliamentary democracy without major violent incidents. In marked contrast to continental nations, the United Kingdom did not experience affray which induced the necessity to establish security forces with specifically

1

Grant Wardlaw “Political Terrorism. Theory, Tactics, and Counter-Measures”, Cambridge University Press, 1989, p. 90.

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C Conclusion

robust features to regain control of the situation and to enforce law and order not only in major cities but also in the regularly unruly countryside. Though the UK did in fact discuss the introduction of a Third Force at some point, the proposed set-up of a paramilitary hybrid force was never realised. On the contrary, especially Ireland – which followed the British approach to the greatest possible extend – and the UK are especially proud of their police officers walking their beat alone, unarmed. Certainly, this does not imply that these countries did not develop any specialised forces or task forces to cope with hostages and other serious situations. Yet the basic principle of the police remained purely civilian and focused on community policing, reflecting the confidence of the government in the prudence and rationality of the individual citizen as a maxim of the common law. Whereas the Kingdom of England and Scotland existed continuously since the ninth century, France felt compelled to enforce its coherent existence by means of robust paramilitary police forces. These different approaches lead to the somewhat humorous yet striking observation that the model European police officer of the future requires the liberalism of the Dutch officer, the confidence and citizen orientation of the British bobby and the pragmatism of the French flic as well as the allurement of the Italian officer.2 Remarkably remains however the question of today’s and future needs of such paramilitary forces in spite of their questionable impact on democratic principles and political neutrality. Belgium as a neighbouring state of France developed similar features, including a Gendarmerie. However, Belgium decided in 2000 to integrate their Gendarmerie into an integrated police service, abandoning the principle of holding two security forces responsible for internal security and law enforcement, one of which with distinct military features illustrating their reliance on the principle of community policing in times to come. Though this could well ring in the end of paramilitary forces in Europe, most states still holding such forces underline their need to counter threats of terrorism as well as organised crime and border protection. Though this might hold true for countries located at the outer EU borders due to their higher exposition to illegal border crossings, most threats to internal security might well be countered with standard police forces and purely civilian means. Since the requirement to establish militarised police forces seems somewhat comprehensible in case of large-sized countries like France, Italy or Spain, the individual reasons for Belgium to abandon its Gendarmerie forces are often attributed to its rather small size and even to the point in time of the decision prior to the events of 9/11 and the emerge of asymmetrical threats. This view is underlined by the existence of local police forces conducing to community policing even in countries that do hold paramilitary forces. Yet, this approach misses an important point, at least to some extend. While the general need of countries to provide forces with a certain degree of robustness and capabilities exceeding that of

2 J€urgen Storbeck “Grundz€ uge eines gemeinsamen beruflichen Selbstverst€andnisses der europ€aischen Polizeien” Auf dem Weg zu einer europ€ aischen Polizei, Rolf Moire´, Manfred Murck, Rainer Schulte (eds), Stuttgart 1992, p. 220–228 (228).

C Conclusion

229

standard police forces, the point of criticism lies in the subordination to a military command. In this context, Germany developed a unique approach to engage in the robust maintenance of law and order by deploying Federal Police forces while meeting the requirements of democratic principles such as civilian command over the forces and the absence of military affiliation. The mechanism of subordinating a – from the outward appearance – typical paramilitary force exclusively to the Ministry of Interior entail the creation of a per definitionem civilian and thus politically acceptable unit. In a sort, the underlying transformation of the Federal Police from a typical paramilitary entity with combatant status to today’s form shows the possibility and feasibility of the approach. The adaptive development of the Federal Police to fit the needs of the prevailing circumstances while abandoning military affiliation proves the appropriability of a robust police force under the control of the Ministry of Interior. In fact, the approach to create a force that is neither a constabulary police forces in the traditional sense nor formally a military unit combines the advantages of both worlds. To further sharpen the outline of the Federal Border Police, a special counter-terrorism unit became embedded in the Bundesgrenzschutz, referred to as the GSG9. The decision to circumvent the quandary of the principle of strict separation by creating a third force option strictly under civilian command but however imbued with many unique strengths that were otherwise the exclusive preserve of military organisations served Germany well.3 In particular, this procedure of partitioning does not entail a perceptible increase in expenses just as it proved to be comparably unsophisticated to organise. Yet an evaluation of the German approach to allocate responsibilities within the various security forces requires an assessment of value with regard to the effectiveness during foreign assignments and international police missions. The main advantage of subordinating a robust police force under civilian command applies also to foreign assignments since the function of acting as a role model for the receiving state must not be underestimated. Broadly speaking, a deployment of armed forces during a foreign assignment is normally the first step to take. But after having calmed or stabilised a crisis by acting as an interposition force or implementing and supervising a cease-fire agreement, the idea to subsequently exchange soldiers for robust police forces on the way to an overall pacification and settling of social conflicts clearly suggests itself. This procedure conforms to the aim of conveying the idea of establishing dividing lines between police and armed forces in the receiving state if non-military forces such as the Federal Police are deployed in concert with a gradual withdrawal of armed forces. Though Gendarmerie forces do indisputably posses some effective and punchy features to conduce to the upkeep of law and order under arduous circumstances in longstanding democracies, their blurring of any precise distinction between police and military is likely to have a considerable destabilising effect on unsettled democracies or forms of government beneath the threshold of democracy.

3

Doron Zimmermann “Between Minimum Force and Maximum Violence: Combating Political Violence Movements with Third-Force Options”, The Quarterly Journal, Spring 2005, p. 53.

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C Conclusion

As for Sweden, which held a somewhat comparable differentiation of forces, their approach seems to some degree comprehensible, yet it adds to a continuous softening of the borderlines between the entities. A delegation of soldiers to police units, subordinating them to civilian command may only at first glance serve as a handy circumvention of the problem. Yet such procedure is neither needful nor desirable compared to a concept of holding ready robust police forces always and exclusively under civilian command. The shortcoming of soldiers engaging fellow citizens cannot be helped by simply renaming the personnel since these soldiers still bring in their armamentarium needed to win wars which police officers are lacking: the mindset to kill. It is this mindset that marks soldiers from police officers and renders the former unfavourable to engage in civil strife. Ascertained beyond doubt, many reasons that led to Germany’s self-imposition of the Trennungsgebot still hold their ground today. However, instruments to enforce and maintain law and order are subjected to a constant adaptation due to a permanent change of environment. Labelled as the transformation of the armed forces, police forces are facing alike challenges. A clear differentiation between police and armed forces and a concurrent allocation of tasks within the national territory bears considerable advantages. At the same time, points of interface need a revision, especially with respect to assignments of police forces and the military abroad. To foster a seamless cooperation of both forces during foreign operations and to take some pressure off the military, an additional deployment of Federal Police forces on such operations is highly desirable. It will not be until the enactment of a European Constitution that the German principle of strict separation between armed forces and police forces will come under close scrutiny. As NATO and current internal debates concerning a handling of national caveats show, a preservation of this principle even after the enactment of a European constitution is not out of question. With regard to the regularly advanced question whether to allow soldiers to control traffic and conduct congeneric activities during foreign assignments, the existence of an equivalent to a state of tension or a state of defence could well constitute a workable answer. Thus, armed forces would be permitted to conduct certain activities, however under comparable suppositions as they are subjected to within their national state. As soon as the prerequisites of such states of siege or emergency fail to exist, armed forces would be substituted for police forces. Such an approach would well comply with the requirement of an exemplary function. In the face of presently encountered deficiencies of peacekeeping operations in Afghanistan, alternative ways of engaging in the process of nation- and statebuilding need to be evaluated. This partial renunciation of the use of foreign forces is for instance applied by China in its engagements in Africa. The practical effect of alternative approaches has however still to be proven, especially due to the incalculable risks of lending unconditional loans to African governments and the underlying potential of supporting dictatorships, increasing debts, accelerating arms trade, impinging on human rights, and a general contraception of democracy and transparency.

C Conclusion

231

By and large, the creation of a hybrid force like a gendarmerie is unadvisable for the obvious reason of blurring spheres of responsibility between police and armed forces to an unbearable extent. At the same time it is obvious, that a mere “more of the same” as postulated by Jaap de Hoop Scheffer will not lead to a distinct improvement of the situation. As to that, strenuous efforts lie ahead of all participants of peace-support operations. Having said this, an increased engagement of Germany’s Federal Police in international assignments is considered necessary, implying a preceding transformation of training, equipment and legal framework, alongside improved cooperation with the armed forces, a harmonisation of points of interface and common standards within police forces in peacekeeping operations. The costs to achieve such a transformation caused by increased recruitment and political headwind are worthwhile. Understanding the requirement of a transformation of the armed forces as a continuous process will be of vital importance to compass similar ends with the Federal Police and to adhere to democratic principles both within Germany and abroad.

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