01 April 2021
The constitution of a state is the legal document that sets out the principles and organisation of the polity and decides upon its governance. Every state has a set of rules that governs its decision-making. Principles, such as rights that protect citizens, can be found along with provisions pertaining to decision-making. This is especially true in liberal democracies. However, decision-making regarding use of force and human rights has come under pressure by new forms of warfare. Amongst these are cyber warfare and autonomous weapons. Thus, questions arise regarding problems originating from new forms of warfare and what effect they may have on liberal democratic constitutions with regard to the authorisation of the use of armed forces?
A constitution is a set of legal norms that regulates the establishment and the exercise of public power. The laws that constitutions represent enjoy primacy over all other laws and legislation that a government of a state enacts (Tushnet, 2012). Furthermore, liberal democracies’ constitutions often have their origin with the people as the only legitimate power source. This ensures that all government decisions are legitimised by the people (Frankenber, 2012). Usually, the representation of the people can be two-fold, either represented through directly elected executive or the legislature, or a combination of both, depending on the organisation of the state.
Constitutions are often the legal source of a government’s power to make war. In liberal democracies, this usually requires the will of parliament to authorise military action (Peters & Wagner, 2010). In older constitutions there are so-called “war clauses”. These are usually grounded in an older view of military action. In this sense, war must be interpreted in its strict sense and usually involves a full-scale mobilisation of national resources and will. They expect an immediate threat to the state and the polity. However, the most common use of military action in liberal democracies in the post-Cold War environment has been military deployment of forces through international organisations or on the invitation of another government (Peters&Wagner, 2012). Furthermore, the activities that deployed forces will usually be engaged in range from providing basic needs to the population, through training of local armed forces, to actual combat (Muller et al. 2011). Thus, the war clauses have found themselves under pressure, and not conducive to the modern paradigm, encompassing a wide array of military deployments. This creates problems for national constitutions regarding decision-making and legitimacy. This is exemplified with France, who, until its constitutional reform of 2008, had only a war clause in its constitution. (Ostermann, 2017). The French military was engaged in a number of deployments, mainly in sub-Saharan Africa, without any involvement of the legislature as the French president is the commander-in-chief of the army, and because the war clause was interpreted narrowly. Hence, the reform did consider the need to involve the legislature in the military decision-making process. However, the president must inform the parliament of the fait accomplit, and the role of parliament only becomes relevant after a deployment exceeds four months in duration. Additionally, the deployment of special forces, as well as the use of naval forces, is exempt from the duty to inform parliament (Ostermann, 2017).
Germany contrasts France because its constitution does not have any explicit war, deployment, or war clauses. Rather, the German Constitutional Court has interpreted the constitution to give such authority exclusively to the legislature. Jurisprudence has been codified into secondary law, specifically into the Parliamentary Participation Act of 2005. This act ensures that the legislature must consent to any type of deployment that would involve armed action. However, derogation is made for humanitarian deployment (Tushnet, 2012). This model of parliamentary involvement in deploying military forces abroad has been followed by other liberal democracies, such as the former Warsaw Pact states of eastern and central Europe. Thus, various models of constitution are to be found when it comes to either use of force, or the deployment of armed forces abroad. Some give flexibility to the executive, and merely give an ex-post review of the decisions of the executive regarding the use of the military. Others place a strong emphasis on the legislature for democratic control over the decision of the executive.
However, these could come under strain with new forms of warfare. It is pertinent to ask, would the use of cyber warfare also come under the review of the legislature? As it does not involve any deployment of forces abroad, but rather it would take place in cyberspace, it could be waged without leaving the national territory. When it comes to cyberattacks that can damage the critical infrastructure of a state: should this be interpreted as a cause of war? (Sleat, 2017) Would consent be required for offensive action by the legislature, or rather could the attack from an enemy state on one’s critical infrastructure be interpreted as an act of war and thus remove the need for legislative consent to act in self-defence? Such questions will have to be answered soon as cyber warfare is developing quickly. It is becoming more and more critical to understand the limits that can be reached without provoking hostile reactions. Further problems will arise with regards to autonomous weapon systems and their use of force. We need to understand if there will be a requirement for such weapon systems to keep personnel in the decision-making loop to ensure that the use of force does not arise without the prior consent of parliament, as such systems are notoriously unpredictable? (Brehm, 2017) (Ford, 2018). Thus, would stronger supervision be required for autonomous weapons in states that have a greater emphasis on democratic control of the use of force to deploy autonomous weapons? The answer seems to be positive, when we consider that any use of force without explicit authorisation of the parliament would amount to an unconstitutional act.
The constitutions of liberal democracies have clauses that either give authorisation to wage war or permit military forces abroad. However, differences arise when it comes to specific procedures. These range from either an ex-ante check on the executive by the legislature as the case of Germany, or for war in France, or an ex-post check for military deployment in the case of France. However, those clauses will definitely come under pressure with the advent of new forms of warfare. The definition of what will and will not require parliamentary control could be circumvented by definition or by an artificial intelligence understanding of a particular circumstance. Thus, better interpretation of clauses, or secondary legislation, governing the use of new forms of warfare are necessary to ensure the internal legality of those weapons systems and to ensure conformity with national constitutions.
Written by Aris VASSILIOU, Legal Researcher at Finabel – European Army Interoperability Centre
Sources
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Frankenber G. (2012) Democracy, the Oxford Handbook of Comparative Constitutional Law. Oxford University Press.
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Ford C. (2018) Autonomous weapons and International Law, University of South Carolina Law Review, 69(2), pp. 414–452.
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Ostermann, F. (2017), France´s reluctant parliamentarization of military deployments. The 2008 constitutional reform in practice. Western European Politics, 40 (1), pp. 101–118.
Peters D., Wagner W. (2010) Between Military Efficiency and Democratic Legitimacy: Mapping Parliamentary War Powers in Contemporary Democracies, 1989-2004, Parliamentary Affairs, 64(1), pp. 175–192.
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