a network of constitutionalists from countries throughout the world
Over the coming days, we will be featuring each of the 20 workshops in the 10th IACL World Congress 2018 on “VIOLENT CONFLICTS, PEACE-BUILDING AND CONSTITUTIONAL LAW”, being held in Seoul, Republic of Korea on 18-22 June 2018. Full details are on the congress website, in English and French, along with information on how to submit a paper. Papers may be in either French or English.
National constitutions invariably confer the supreme military command to the executive power. The question then arises to know how Parliament is brought into the decision-making procedure before military engagements start and during their duration, and how subsequent control is ensured.
The word “control” should be understood in a broad sense, encompassing upstream measures like requirements of formal parliamentary consent before starting a military intervention, control through parliament’s command of the state budget, the permanent running of ordinary oversight mechanisms like questions and hearings, and downstream measures like accountancy, evaluations and inquiries.
It is useful to distinguish between engagements at home and abroad, and between defensive and active (or even aggressive) engagements.
Military interventions within the relevant state might take place under different circumstances, stretching from natural disasters to social unrest, regions heading for independence, to civil war. Particular mention might be made of the admissibility of calling upon military forces for accomplishing tasks that normally belongs to the police.
As to military interventions abroad, the criteria for bringing parliament in seem frequently out-dated. For instance, formal “declarations of war” seem obsolete, parliamentary authorizations to use armed forces abroad are not. Could the notion of “war” be qualified as equally out-dated? At this point at least, bringing in elements of international public law might be useful or even necessary.
Across the suggested distinctions, the question about secrecy invariably appears: To what extent and under which conditions may or should parliament be brought in about matters that by necessity should be treated as secret, and which specific parliamentary procedures apply? For how many years after the end of the operations do secrecy clauses apply, and what would be acceptable?