Parliamentary Scrutiny of Military Operations in France and Germany. The Different Level of Influence of Parliaments

Transcription

1 Parliamentary Scrutiny of Military Operations in France and Germany. The Different Level of Influence of Parliaments Delphine Deschaux-Dutard Associate professor in political science- University of Grenoble Alpes This paper is only a long summary of our presentation. Draft version: please ask the author before citation. The use of armed force and its political legitimation are handled differently in each EU Member State. So far the Common Security and Defence Policy has been unable to bring about greater convergence among parliamentary practices. The ideological and practical differences among the national parliaments when it comes to conferring legitimacy on military operations remain substantial. Yet those missions have become crucial for the credibility of the Common Security and Defence Policy. The actual context of the terrorist threat in Europe after the attacks in Paris (2015), Brussels (2016), Nice (2016), Munich and Ansbach (206) makes the question of the use of force on the national territories of European countries even more accurate and raises the issue of the control over internal military deployment. That being the case, a comparison of the respective roles of the German and French Parliaments in the field of military operations (both external, and particularly under the CSDP framework, and internal) should allow a better understanding of the challenges confronting this policy area in the field of democratic scrutiny. 1/ Legal dispositions in both countries 1.1.Parliamentary scrutiny over military external operations in France In France the army holds a special position within the state through its link with the supreme political authority: the President of the Republic (while in Germany the Commander in Chief of the Armed Forces is the Federal Minister of Defence). 1

2 In the event of recourse to the use of armed force, parliamentary scrutiny in France is in no way comparable to that which exists under the German system. Only the Chairman of the Assemblée nationale s Defence Committee and a few members of his office are entitled to more substantive information. It is true that Parliament votes the financial acts that determine in particular the defence budget and the five-year military programming law. Thus, until the constitutional reform of July 2008, the only military act requiring authorization by Parliament was a declaration of war. New Article 35 of the Constitution, however, aims at making a vote by Parliament on military operations the normal procedure. The first historic vote took place on 21 September 2008 on the occasion of the decision to extend the French armed forces mandate in Afghanistan. Since then the French Parliament voted several times to extend French military operations (Mali, Libya, air strikes on Syria and Iraq ) Parliamentary scrutiny of defence in Germany There is a traditional relationship between the State and the armed forces in France, while in Germany the approach is more pragmatic; there, in accordance with ideological principles, the army is placed under the highest democratic authority, the Bundestag. Since 1945 Germany has acquired contradictory constitutional provisions that restrict the deployment of the Bundeswehr outside NATO territory. Indeed, Article 87a of the German Constitution requires constitutional authorization for the deployment of Germany s armed forces outside the national territory, while Article 24 asserts Germany s responsibility in the area of collective security, including in the case of external interventions. Those conflicting articles are put to the test when it comes to the resolution of regional conflicts: military operations conducted within the framework of European defence policy clearly extend beyond the borders of NATO territory. Against the backdrop of intensive debate in the German Parliament between the Social Democrats, Liberals and Christian Democrats, the German Federal Constitutional Court finally ruled in 1994 that the participation of German soldiers in out-of-area military missions conducted under a UN mandate is consistent with Germany s 1949 Ground Law, even when those missions entail the use of force. 2

3 Every deployment of German armed forces in an external operation, be it military or civilian, must be approved by the Bundestag by a simple majority (Article 87a). Through the organization of parliamentary debates on defence matters as well as by making use of its right to establish at any time a committee of inquiry in order to question the Chief of Staff of the armed forces, the Standing Committee on Defence exercises effective scrutiny over the government in this area. Furthermore, the Bundestag elects a Parliamentary Commissioner for the Armed Forces (Wehrbeauftragter), whose task is to assist the Bundestag in exercising parliamentary oversight. Moreover the Wehrbeauftragter represents the German armed forces in the Bundestag, giving them a direct link with Parliament. In France no such system exists. In addition, as in all European democracies, the Bundestag must approve the defence budget as part of the Federal budget. 2/ National parliamentary practices and the CSDP The reason for the problems posed by the democratic scrutiny of the Common Security and Defence Policy is the lack of a European security identity. This shortcoming is reflected in the diversity of procedures for the parliamentary scrutiny of defence questions at national level, scrutiny that ideally should be backed by a system of oversight at European level, which for the moment remains largely to be developed A tenuous role for the French Parliament in the area of CSDP Although Article 88.3 gives the National Assembly the right to examine questions pertaining to the Common Foreign and Security Policy (CFSP), in practice, for each military operation, the Government has made a case for the need to use urgent procedures in order to be able to deploy troops rapidly without any parliamentary debate. The pre-eminent role of the French President in military affairs makes this possible. Parliament s role is made even more tenuous by the broad consensus that exists on defence questions in France, in contrast to Germany where the Greens have been particularly active in keeping the debate on that topic alive. In France, since the 1980 s and François Mitterrand s support for a foreign policy in line with 3

4 the Gaullist, defence in France has been the subject of a national consensus based on several fundamental principles: nuclear deterrence, building a European defence, participation in international military operations, strategic autonomy. National defence remains the preserve of the French President: it is he who decides, on the advice of the Chief of Staff of the French Armed Forces in the framework of a restricted council on defence, on the deployment of troops abroad The Bundestag an important actor in CSDP The German Government tends to be strict in its compliance with the procedures foreseen by the Basic Law for the parliamentary scrutiny of external operations, whether these are conducted in the framework of the CSDP, the UN or NATO. For a long time Germany s politico-military players contented themselves with the image that Germany had established for itself as a civilian power, in particular as of 1998, when Chancellor Gerhard Schröder defined security in terms of peace policy (Friedenspolitik). While Germany has understood the importance of gaining visibility and power at international level, which European defence policy enables it to do, it must consider one major factor that barely exists in France: the pressure of public opinion. Much more than in France, the cooperative federal system facilitates a direct link between the Bundestag and German citizens, with the result that parliamentary scrutiny over the government is much more stringent than it is in France s semi-presidential system. Moreover, German public opinion remains relatively wary about the participation of German troops in combat missions: In 2005, 43% of respondents took the view that Germany should focus on its own problems and refrain from intervening in other nations crises, while 34% were in favor of active engagement by Germany in resolving crises in third countries. Since the Bundestag must approve all Bundeswehr deployments and determine the operational mandates in detail, its decisions are a crucial factor in European military operations. The intensive parliamentary debate that preceded the launch of the EUFOR mission in the Democratic Republic of Congo in spring 2006 clearly showed that it takes a long learning process in order to establish the link between the Common Security and Defence Policy and parliamentary oversight. On 17 May 2006, 440 Members of the Bundestag approved the deployment of 780 German soldiers in Kinshasa; there were 135 votes against and six 4

5 abstentions, predominantly among the members of the Green Party, the Liberals and the SPD. Notwithstanding the importance of intensive debate on such a subject, this constitutes a major caveat with regard to the immediate response, often necessary in the context of the CSDP. The question is how the requirement for democratic scrutiny of the CSDP can be reconciled with an effective rapid response Deficient parliamentary scrutiny at European level The role of the European Parliament, EP which could provide a bridge with the national parliaments in the field of European defence policy, is reduced to a minimum. No significant role in the field of CSDP has been assigned to it de jure: the Treaty on European Union (TEU) makes provision solely for the EP to be consulted and informed about defence in the framework of the Common Foreign and Security Policy in connection with matters pertaining to the common budget (Article J7.V). In addition the EP may put questions to the Council and present opinions on developments within the CSDP (Article 21 TEU). However, the EUMoP have no means of influencing the decision-making process in the run-up to a new European military mission it is neither required to give its prior approval nor has it the right to be consulted given the intergovernmental (as opposed to supranational) character of European defence policy. A further major shortcoming of the EP is its lack of powers of scrutiny over member states military expenditure for CSDP missions and over the common costs arising as a result of intergovernmental arrangements: here again. The EP merely has the right to be informed by the Council about the expenditure incurred as a result of such common costs. Basically, the difficulty of reconciling the need for parliamentary scrutiny at national and European level over defence issues with the existence of the CSDP is due mainly to the strictly intergovernmental nature of this policy area. This question of parliamentary oversight over the CSDP is starting to arise in connection with the traditional debate between the advocates of federalism, on the one hand, and those who favor an intergovernmental approach to European integration, on the other. Currently, the European Parliament the very symbol of democracy at supranational level is only a minor player in the Common Security and Defence Policy. But reading between the lines, it is obvious that the fundamental problem facing European security and 5

6 defence policy is that it involves nations with very different relationships between Parliament and the armed forces. In truth, the crux of the problem is one of national sovereignty and the need for nations to delegate portions of that sovereignty for the purpose of a common European defence. 3/ What now? State of emergency in France and war on terror in Europe The terrorist attacks in France in January and November 2015 and in July 2016 introduced a new context for the armed forces : the deployment of a military operation on the national territory (the Sentinelle operation since January 2015). This meets a debate already opened after the terror attacks on the World Trade center in September 2001 raising the question of the relevance of military actors in the fight against terrorism. The question of the employment of military force on the national territory has also been raised in Germany during the elaboration of the last Defence White book of 2008 and the terror attacks in Munich and Ansbach in July 2016, although they don t directly raise the question of a Bundeswehr deployment on the German territory, show that the question is still and more than ever accurate The case of France in and the Sentinelle operation This operation is very specific as the army takes over police missions on the French territory. The operation Sentinelle testifies of a paradigm change: the French army does no more only punctually help the police forces but now permanently plays a significant role in territorial protection as it was the case during the cold war but with a different meaning : here the enemy is not conventional and attacking the borders but it can be an insider attacking the population. Up to soldiers can be deployed on the French ground (which is actualky the case) and since the July terror attacks, the French President decided that this number could be auditioned with up to member of the operational reserve of the French national police forces. If the French Minister of Defense M. Le Drian assumes that threat has become militarized both inside and outside the national territory, the rule of law still prevent the army 6

7 from acting inside the territory as it does outside during military operations. Thus the Sentinelle operation creates a case of legal blur about its parliamentary control. This operation takes place in special legal framework: the state of emergency. The French Law provides fort three specific legal frameworks in case of exceptional circonstances like a crisis, a civil war or brutal disruption of public services. The article 16 is one possibility and attributes both executive and legislative powers to the President for a given period of time. It was only used once in 1961 during the troubles in Algeria. A second framework is the state of siege defined at the article 36 of the French constitution and which applies in case of an imminent foreign war or military uprising (a civil war also falls under this framework).the Parliament must decide to extend the state of siege after the 12 th day. This framework has never been used since the end of the Second World War. The third possible exceptional legal framework is the state of emergency decided by the French President on November 14 th 2015 in the aftermath of the Paris terror attacks. The state of emergency has been defined by the law n on April 3 rd 1955 and can be decreed in case of imminent threat resulting from serious violation of public order or in case of events assimilated with public calamity by their very nature and seriousness. The state of emergency is declared by decree in the arena of the Council of Ministers and bestows exceptional police prerogatives on civilian authorities in the area where it applies. The operation Sentinelle takes place under this framework, where the state of emergency applies to the entire French territory in But the state of emergency does not necessarily imply the use of armed forces for the preservation of public orders. Only the state of siege requires the armed forces for these purposes. This means that the use of the army in the frame of the state of emergency in the current situation in France is much more the result of a political and communication choice coupled with material needs for a large amount of disposable men to patrol some strategic areas. Moreover, the article 35 of the French constitution states that the Government informs the Parliament of its decision to send its armed forces abroad, thus restricting the parliamentary control of military operations to the case of external operations. The Constitution does not provide any help in the case of Sentinelle, which is an internal military operations assimilated to police tasks performed by the military forces. The French code of defence also excluded any intervention of the legislative body from the competences attributed to the armed forces concerning civilian defence (D. déf., art. L ). Last but not least, the Sentinelle operation constitutes a specific case insofar that it is a prolongation of 7

8 the Vigipirate police operation that existed long before the terror attacks of A confidential report from February 2016 to the Prime Minister on the Sentinelle operation also considers that the leading authority is the Home Affairs Ministry and that the armed forces are only contributing forces. Thus this internal operation was never discussed in the parliamentary arena until now, which has been criticized by some members of parliament from the Ecologist party for instance Germany and the question of the deployment of force inside the territory In Germany the use of the armed forces in case of crisis raised an important debate in 2006 in the wake of the drafting of the German White book on Defence in The former German Defence Minister Jung (from the CSU) wanted to enlarge the possibility of employing the Bundeswehr on the national territory by pointing the threat of potential air terror strikes. But at this time the Social-Deùmocrat and Green parties were opposed to such a possibility which should imply a modification of German Ground Law. Their main argument was to stress the fact that the German army should not become a second police force and the sdivide between police and the military should remain strict. But the renewed terrorist threat on European countries, which Germany experienced twice in July 2016 (in Munich and Ansbach, on a small scale), pushed for a renewal of this vision in the 2016 White Book on Defence issued in berlin in July In accordance with Article 35(1) of the German Ground Law, the armed forces may render administrative assistance at home. Such measures are limited to technical and logistic support. They are below the threshold of operations. Refugee aid and relief is a current example of such assistance. The Bundeswehr cannot exercise enforcement measures and sovereign powers on this basis. In Article 35(2), second sentence, and (3), the German constitution expressly allows the deployment of the armed forces at home at the request of a federal state or at the instruction of the German Government in the event of natural disasters and serious accidents (emergency situations). Large-scale terrorist attacks can be considered to be such an emergency situation. The German Constitutional Court has confirmed that, in order to assist the police in effectively managing emergency situations, the armed forces may, in certain conditions, perform sovereign tasks and exercise powers of intervention and enforcement. The German Government can also, in a state of defence or tension, employ the armed forces for facility protection and traffic control responsibilities pursuant to Article 87a(3) of the German constitution. According to Article 87a(4) of the constitution, the armed forces can 8

9 also be deployed in the event of an internal emergency if the conditions referred to in Article 91(2) are fulfilled, in other words if there is an imminent danger to the existence or free democratic basic order of Germany or of a federal state. The strict conditions to which the use of the armed forces in internal emergencies is tied precludes any recourse to Article 35(2) or (3) of the constitution. The major difference with France here is the mandatory approval of the German Parliament as for the German political leaders and first for the Chancellor herself, the Bundeswehr must remain at all times a parliament army. As a conclusion one can come back to jean Joana s categorization of European countries into three groups in terms of parliamentary control over the use of military force. France and Germany definitely differ. Germany belongs to the first group gathering countries developing a high level of parliamentary control over the use of force whereas France is characterized by a much weaker level of control, even if the constitutional change of 2008 gave the French parliament more regard on the use of force through the renewed article 35 of the French constitution. The divergences existing between EU countries on this important matter tend to carry on in time even faced with similar security challenges. These enduring divergences not only stem from different institutional organizations of the European national political regimes but also from the differentiated pressure of public opinion on military matters and the use of force in each country. If in France public opinion has shown limited reluctance to the use of force in the latest years (the terror attacks even motivated a rally around the flag phenomenon), the German public opinion is still characterized by strong pacifist trends and an enduring reluctance to the use of military force. 9