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Military Law Systems O.ffprint.from European Military Law Systems Edited by GeorgNolte De GruyterRecht ' Berlin This oJfprint is not.for sale or reproduction Tableof Contents Clrupter5 Forewor<l b.t,Gtorg Nolte Law France List of C'ontributors XIII Military in Abbreviations XIV JôrgGcrkrathr Chapter l: EuropeanMilitary Law Systems:Summary and Recorn_ merrdations I hv Gcorg Nolte untl Hcikc Kricgu l:rblr of ('ontents -I'hc Chapter 2: EuropeanMilitary Law Systems:General Contparltivc l. Ilrstorical lntl Political Birckground ol'the French Military La*' Report l9 )) \t('lll 277 hy Gt'org Nolte und Heike Kricgt'r l. 1'hc I)igniliecl Role of the Individual Soldier 277 l. l)crlocratic Control an<.|Rights and Duties of Soldiers 219 Chapter 3: Military Law in Belgium 183 ;r. l'hc FrerrchConstiluliorr 2'79 by ['icrrc d',lrgcnl b. Thc (.iovernmentof'the Fifih Republic 182 c. l'renclr Public Opinion 284 Chapter4: Military Law in Denmark t-)-l ll. llrrsicRules (bncerning the Use ol- Armed Force 285 h.r.Jrtrgcn ,1lbrk .lan.sctt l. l'hr Mission ol'the Armed Forces 285 -'. I'crrnissihlr()perlrliorts 287 Chapter 5: Military Law in Irrance 275 ru.( risrs Management Abroad 288 (icrknrtlr br.liir.g b. lltrnranitlrian Aid at Home and Abroad 288 t. ( ornbinetl with Aid 288 Chapter6: l\'lilituryl.aw in (icrrnlny Operalions Civilian Organisations (1.( ()()pcrati()lrbetween the Armed Forcesand Other Covernmental h.t'(icrtr,q Noltt tttd I Icilit Kt.itt:cr Aut horities 288 c. Sllrtcsol l:nrergencytt Home 289 Chapter7: Militlrv l_rrwin ltirly 4_ | I Nrrttrnrl I)isus(ersor Hur.nanitariarrCatastrclphes at Home 290 h.r..liir.qLtrtlur r'. I rlrcrr:rtitlnol'a Statc'sNationals 290 Chaptcr8: Military l-uwin I-uxcnrbourg 5t1 lr. I Isr ol lhc .Armcd Forccs in Other Cases 291 I ( b.t.l:ritli'rit l\ t1tu.rytt I rrrrrt:rtiorrrr)n )pcnlti()nsUndertaken Jointly with the Armed Forces ,,1 '\ttolltct ( otttttry 292 Chapter 9: Militlry Law in the Nethcrlands 517 I ( ()n\lrlltll()tLtl I)o\\crs 292 b.t'LL,rntunl l'. lll. Bcsstlirtk Irr'l'r':i(rorr ol tltc I Icad ol' State 292 Irr'I'orrt rs ol tlt. ( iovcrrtt'ttcttt 291 Chapterl0: Military Law in Pollrrd 611 IrLl':rrtrtrPlrlrorr ol l'ur'litrtrttttin the Dscisionto Deploy the Armed hv Llichul Knyul.ski I i'l( i \ 294 ,t Ir, l rrrt lrorrsol tht' Ministcl ol' I)elènce 296 ClrapterI l: Milrtlry Law in Splrrr ltl lr, l{,,1,,,1 ll)c \t,lrl:tr\ I tlrtlcrship 291 ht Lort'ntt ('otitro Hut,;rt l'rt It rnr, ttl,tt\ ( r'lttl('l 298 I lr, l',rrlr.rrrrLrrt: I\rrrt'rrto ( orrlrollhe Armetl Iilrces 29rl Chapterl2: Military Law in the United Kinqdonr It.l I l' \1'rr r,rl| ,'t;11r,'1l',rtlr;rtrr'tt1;ttr ( otttl.()l ovcr lhc Militlrry /t.t' 11,t<,rRrntt' t trrrl'rr,l.lrrI .,,il. 100 ( ,,ur| (,l \u(ltli't\,r||(l( ()lltl).rr,tlrltlttsll(ttliotts 100 Chapterl-3: lntegratedBi- and Mr.rltinationlll\,tilirlrv [ ]nitsin I:ul()|( \\() hy lllu.rirn Klairtt' ,,r ,,1| rs I rrrr,t,tlr ,'l \irlrr,rrr 276 Ji)rg (ierkrath Military Law in France 277 III. The Structure of'thc Armed F-orces t(x) l. Thc RulesConcernrng the Carryingand Useof Arms and other Military l. The Armed Forcc'sand their Adrninistration l(x) lrquiprnerrt 129 f . Irr"olvcment ol' the process Civilian Administralion in the ol. I)titetttctttr'rrl VIll. l-egalRefcrrms with Respectto MuhinationalOperations itnd Structures 330 rri- Material and _ Supplie" t{)l L Per'linentl-egislatiorr 330 IV Soldiers'Rights and I)uties t0| l. l'}robabilityof Future Reforms 331 l. Restrictionson FurrclamentalRights of sokliers .10| J. Academic Discussion tll a. (iencrtl Aspects .t0l l\. SelcctBihlittgrrrphy J32 b. Rrlitical Neutrality of Soldiers l0l l. I)ertinentLegislation 332 c. I'rceclornol' Associatrolr .l( );l lr. MuirrStututes -r-rJ d. ('onscientrous( )bjectlolr -frcillnrcn( .10-5 h. Importarrt Decrees -1-1J e. I:quul .. _. .. .105 l. l|,roksurrtl Articles -1 -t -1 l. ( )ther Irunclantcrrtal Rights arrd their Restrictiorrs l0(r ll. Books )-)-) I-cgalObligltions ] ol soldiers 301 b. ('ollections and Textbooks 334 3. Thc Powcr ()l'('()nlr)lrnd and the l)uty to Obey -109 c. Artrclcs 134 ,l Sr>cialIlights ol' Soltlicrsan<l their Families -ll0 5. Rules(iovcrning Workillg Ji6e lt2 a. Working'l intc lrrrtl('ompensutiorr fbr Ol,ertime 3rl b. l lolrdrrysarrtl Spccill _ I_errve ,.1t1 l hc llistorical French 6. l-egal l. and Political Background of the Military Renrerlics. rrr [r:rr.ticularIlights to I.ile a Complaint 3t3 7. Rights l,aw Svstem ol' InstitutidnlrlRcprcscnirtit)n 3t5 The Relationship ol' thc Supcrior.to Suborclinatepersonnel 316 l. Legal Rulcs ( oncer-nitrg thc llclltiorrship betweenSuperior antl I hc Iristoricrrland political circumstanceswhich have influenced the French Subordinatc 3t6 nrilit:nv lrrrvsvstem werc very diflerent lionr those in Germany. Therelbre.rssues l-Sub.rtlirrirti()ll()ls()ldierst.(hc(irr'rn.rrd.l':rsuperitlrof'F.reign Ârnrccl srrelr :rs tlcrrrocnrticlccountability ol' the armed forccs or the dignified role of l;orces 3t1 J. SclviceRcgulatiorrs urrd thcir llre irrtlivitlull soldicrdid not unfold in thc sameway. Obviously,France is not Lcgul Nlturc ll8 vt.Sanctions 3t8 orrlv rr nrrtior.rwith a long history. but also a nation with an old and strong mili- l. Disciplinury 'l'hc [-lw 3r8 t;rr'\trrrlilion. institLrtionof a standingarmy was decidedupon in 1439by a. DisciplinuryPowe r lt8 ,r rrrrrl trltlintrr.rccdccreecJ by Charles VII, called "les compagnie.çd'ordon- h. ( r'inrirr:rlLirw rrrrtl l>,r.:;pti,r,iryry II-irw ,, .lt9 c. 1'he l'urpose ol' Disciplinary Luu, 120 d. I)isciplirraryMelsures 3r0 e. l)isciplinary l-aw and the lruropean Convention on Human Rights . 12l l.TheDiscip|inaryProce<JureantJLegalRenle<lies 321 l. I lrt' l)isnil'ied Rolc of the Individual Soldier g. Representatron rtl-the Armed lirrce.sduring Disciplinaryproceeclings 322 h. Mcitsuresol ('omnrcrtdirti()n . .' 2. Military -1J t llrt lrrl l)('t\\r'enthc lrrcrrchnution and its armed forceshas traditionallybeen Criminll Law 3l-l a. General Issues -323 rt r\ tlost..rl ltrrslsirrec thc IjrcnchRevolution. Articlc l2 of the Declarationof b. Relationto General 's') Criminal Law I )/ | ,1,,1.,',rllrrrl. " llrc gulrnrntceol' the rights of humans and citizensre- c. Military CrirninalCourts 321 {1ilil1. d. Relationship ,r lrrrlrlrtlortc: tlris lirrecis thcrclilreestablished for the advantageof all, betweenCivilian an<l Military Courrs 125 e. .rr{l rrr,llrrr 11r. irlilityol'thosc to whom it is attributed".[rurther- SpecialRules with respectto the Legalprocedure arrd the Sanctions 1)iulreuliu Systern (r!r(lnr1' "Thc public 325 nr{,ri ,r, to llrt'( o:rslilrrtionliorn lfl4[3, fbrceis in essence f. The 'l-he Military Prosecutor :12-5 ,,1,,,1r,rrt n() .rnu((lr'orl)\ nlil\ tlclrl'rcrlrtc". principleol- the subordination g. J.ustificationby Superior Orders 325 ,,1tlr, ,rilrr\t() tlt( rt\llt:ilt,rrrllrolilics $'lrs irrtlcccl coltsidcred to bc fundamental. h. Sanctions lirr Non-Compliancewith InternatiorrnlFlumarritariarr La,ur 126 i. Ratillcation l:, trr,tr(,n. ,,r llr, rrllrls ol |olttitlrl erPlcssiotr ttl' soldicrsin thc llcld have of the RoméStatute of the I.ternatr.'al criminal (.ourt 326 VII Regulations.Governing(juard Duties ,,'|.rrlilr'illlrlrr'trr.r(\(l)l\'(l ,r\n((('\\iilt. Ilre ltttttctl lirtccsltrclrlcitllttocxercisC l' Powers pers.nner -rL I ol Guardstowurds Military aswelr ;rs [()\Àilrds ('i'iriirrrs rl8 tlr,rr 1'r,)1,..r,,rr rrrllr,rrrl (lr\(u\\rolr. llttrt'lotr'. tltcv :ttc c()tlllll()lllyktloltt tt.t 2' Perltrrnranc'et.'f Guard t)uticsby Sordiers.f'r,.rcigrrArnretr Ir.r.ces ll9 I r itr,, t Li 'r,ttt,/, ltlltr'll( 278 .liirgGerkrath MilitaryL:ur irr France 2'79 But, as the army is alsoconsidered to be urrcrlrrlrliorr ol lhc rrrrtron.lhc ;rbout thc role of the armed lbrces and the individual soldier.A recently individual soldieris presentlyconsidered to bc u "citizcnscrvirrr rrndcr thc publishcdPhD thesis(in History),which dealsin detailwith this periodof flag".:1n. 1972Gencral Statute of the Military inclicllcs.l'urthtil.rrr.;rc. that rcccnt[;rcnch history. has cclntributed to the deepeningof this publicdebate.T "military statusrequires uncler all circumstancesdisciplinc, loyalry 11cl u spirit ll()wcvcr,no specil-icpolitical proposal has been issued, and a nrajoritywithin of sacriflce".As a result,the duties which come with this status thcrelilre tlrc populationand the Parliamentseems to considerthesc events as being "merit the respeclof all citizensand the considerationol' rhe nirtron".The lrnkeclto l veryexceptional context. strongestlink berweenthe nation and its armed rbrceshas beenc()nscription. 'lhc whichwas cstablished in I 905and cndedelrectively on 30 Novenrber100 I . , translbrmation of the F-rcncharmccl lbrces into a tully profèssionalarmy an<1 2. l)cmocraticControl and Rightsand Dutiesof Soldiers the redefinition of its role was initiated by the " Livre blant..sur la tlë/ënse,,of 1994. 'l That white Paperalso implies important changes with regardto the link rr lrt I:rL'ttrh ('onstilttliott betweenthe nation and its armed lbrces.The nceclfbr bettercommunrcation (icrnran lionr "/a I nlikc lhc Constitution, the French Constitution fiom 19,58does not gruntletnu(ile" appearsto be clecisivein this context.aand the nced to tlt'rrlurlh thc rolc of the armed lorceseither in terms of democraticlegitimircy recognisea broaderright of expressionfbr the rrrilitaryis underlinecl by an (,r il) tcInrsol's<tldiers'rights. with regard increasingnumber of observers.i to cxternaloperiltions. I-rench con- slrlrrlionrrlllw might evenbc consideredsimply non-existent.E As the military of a lbrmer colonial power which retainsstrong poritical lrrcnclr constitutional law does, however, refèr to a very traditional (and interests,especially throughout "lu frunt'ctphonie"and on the Afiican continent. so1111'1111111 irtltchronistic) vision o1' national sovereignty which still exclcisesa the Frencharmed forces have developed what may be calleda certain'.culture of 'tronr inl.lLrctrccon l.'renchpolitics.
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