Moreover, much of the role of the armed forces in modern societies involves international
co-operation, whether in strategic security alliances or in peace-keeping missions. The
constitution will usually specify the effect and importance of international treaties and
any process for approval at the domestic level. This is of crucial significance in the case of
duties of mutual support (e.g., the effect of Art. 5 of the NATO treaty).
Finally, constitutions commonly specify the rights and duties of citizens. The constitution
will therefore limit the powers of the armed forces over civilians. In addition, individual
members of the armed forces will look to the constitution for guarantees of their own
position.
Although many constitutions do not deal with the human rights of armed forces personnel
specifically, they do establish the context for the functioning of the armed forces at home
and abroad. Where constitutional provisions do deal with the armed forces, they commonly concern two distinct issues: specifying the role of the armed forces and dealing with
the allocation of authority for their control.
Some older established democracies (e.g., France and the United Kingdom) have not found
it necessary to prescribe the role of the military in detail. Instead, they rely on general principles establishing the competences of the organs of the state, recognized within the constitution (e.g., the presidential prerogative in military matters under the 1958 Constitution
in France’s case). However, this is not a pattern that can be generally advocated, especially
for states that have undergone profound change. Even some older democracies have found
it useful to provide more precise guarantees. For example, the Netherlands’ Constitution
(Art. 100) requires Parliament to be informed if the armed forces are employed “for the
maintenance or promotion of the international rule of law”, and Art. 19 of the Danish
Constitution imposes a duty to inform Parliament of military operations.
Keeping in mind that government behaviour is guided not only by constitutions but also
by laws, customs, and practices, the remainder of this chapter will discuss the role of the
armed forces, as well as control of the armed forces.
2. The Role of the Armed Forces
Several broader constitutional features may affect the way a constitution specifies the various roles of the armed forces. One is the extent to which ordinary legislation (as opposed to
the constitution) deals with matters of detail concerning state bodies. Another is the status
of international agreements, whether, for example, international treaty commitments are
treated as part of the constitution.
Many constitutions simply specify in broad terms the mission of the armed forces in maintaining security and protecting territory and the constitutional order. In some cases, more
specific tasks may be defined in the constitution. The German Constitution, for example
(Box 6.1 below), makes particularly detailed reference to the tasks and powers of the armed
forces, a feature resulting from German history. For the most part, however, these matters
are dealt with at the level of more detailed legislation (discussed in Chapter 7, “Domestic
Legislation”). More rarely, as in the case of the UK and France, the tasks of the armed forces
are specified at the governmental level.48 The level at which the tasks of the armed forces
are specified will affect the ease with which their role can be changed and whether specific
deployments of the military can be challenged on constitutional grounds. Constitutional
48 Nolte, op. cit., note 6, pp. 34-39.
43
Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel
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