Seminar Constitution and War. Conclusions

Rafael Bustos Gisbert Professor of Constitutional Law at the Complutense University of Madrid. Member of the Venice Commission for Spain

11 de octubre de 2023

BustosUnder the auspices of the Venice Commission and the Spanish Centre for Political and Constitutional Studies (CEPC), the Seminar Constitution and War was held in Madrid on 14 and 15 September 2023.

The Seminar was structured into five panels: (1) Types of war; (2) Ius ad bellum in constitutional law: the national regulation of warfare; (3) Ius in bello: Democracy and control of the military action during wartime; (4) Ius in bello: constitutional protection of fundamental rights during wartime; (5) The Constitution after the war. A full account of the issues discussed and the identity of the Keynote Speakers can be found in the official Agenda.

The seminar was an excellent opportunity to share experiences and knowledge by keynote speakers and participants in critical issues related to the prevention of wars, the protection of democratic governance and human rights during times of conflict and the promotion of post-war reconciliation and rebuilding.

From the beginning of the Seminar (Ms. Granatta) it was underlined that Democracy and Freedom without security do not make much sense. Although security is not among the objectives of the Council of Europe, it is an enabling condition for achieving its goals of maintaining and improving the rule of law, democracy and human rights in the member states.

In order to deal fruitfully with the basic subject of the seminar, it was found essential to adopt both a multidisciplinary and a diachronic approach.

Diachrony manifests itself on two levels. On the one hand, it should be kept in mind that the relationship between law and war has been the concern of philosophers, theologians, jurists and political scientists for centuries. From the very first panel (Mr Papageorgiou and Mr Baqués), references to classics such as St Thomas, Grotius, Vitoria or, in the 20th century, Walzer, were highlighted, but were a constant source of reference throughout the seminar. On the other hand, the discussion of the constitution-war relationship must not only examine the traditional issues of just wars (ius ad bellum) under international law or the conduct of the contenders during the war (ius in bello), but also (Mr. Moliner) the constitutional law before the war (ius ante bellum) and the law (ius post bellum) after the war itself (Ms Warren and Mr. González).

Interdisciplinarity manifested itself throughout the seminar in the consistently detected underlying struggle between the demands of the law and those of the highest national interest sought: winning the war. This tension is shown in the different ways of addressing the problem. One is more empirical, based on political science analysis that ends up questioning to some extent the way in which the values of the rule of law and human rights actually operate during wars (Mr. Baqués and Mr De Castro). The other approach is normative, based on the applicable legal rules and the legal formulas that guarantee the protection of these values (Mr. Papageorgiou and Mr. Alivizatos). Ultimately, law, and constitutions in particular, (Ms Hermans) "must not be blind to reality" and so the analysis of cases constitutes an essential formula for understanding the problems in all their extent and difficulty (Ms Biglino) without this implying the recognition of the supremacy of the national interest in winning the war over basic constitutional values.

There is not, nor can there possibly be, a checklist that can be used to establish when a war is justified (Mr Papageorgiou). Moreover, it should not be forgotten that a just war can become unjust because of the behaviour of the combatants during the war (Mr De Castro). Finally, the so-called proxy wars are the absolute negation of the values of the rule of law and democracy insofar as war is waged through proxy combatants without any kind of control or transparency.

The central thesis of the seminar was formulated by Mr Alivizatos: constitutions can be a useful instrument to avoid some wars and to mitigate the most relevant violations of the rule of law. Three key principles appear to be basic in this regard: (i) civilian supremacy over the military; (ii) parliamentary control of military affairs; and (iii) state of emergency regulation in accordance with international standards. But constitutions cannot solve all problems or prevent all wars. In other words: good constitutional design prior to the outbreak of conflict (Mr Moliner) ensuring basic constitutional principles of the rule of law and democracy can go a long way towards preventing war from taking place. It can also help to ensure that the pursuit of victory in conflict does not lead to the erosion of core constitutional values such as human dignity, democracy, separation of powers or the rule of law (Ms Hermans). The principles of legality, proportionality, necessity and temporality of restrictive measures must guide any action once war has broken out (Ms Hermans and Ms Biglino).

In this framework, the availability of effective legal and democratic checks and balances becomes the cornerstone of the constitutional response to war. Hence, full judicial control must be maintained on the executive and, more specifically, on the behaviour of public officials (military or otherwise) during and after the conflict. On the other hand, the maintenance of democratic control also seems crucial, with at least two basic aspects to highlight: the establishment of effective parliamentary controls over the government and the military, and the preservation of a free and public deliberative process, so that only strictly indispensable constraints on national democracy are admissible.

The theoretical approach is clear, but wartime practice must be taken into account in a decisive way as well (Mr. Merridor). This practice requires an understanding of three basic elements. Firstly, the need for the control processes (judicial and, above all, parliamentary) to have sufficient knowledge of the technical (military) aspects of war. Secondly, the willingness of citizens to accept limitations on their rights for the sake of achieving victory in war, so that such restrictions appear strongly legitimised by the will of the citizens before, during and after the war. A will that, in wartime, is strongly emotional. Thirdly, the strong popular (democratic) criticism of any attempt at (especially judicial) control over the behaviour of public agents in wartime. A democratic paradox emerges whereby the application of constitutional controls to guarantee the rule of law, democracy and human rights in wartime generates strong popular opposition. These issues can also generate difficulties in post-war times (Ms Warren and Mr Gonzalez).

The seminar identified a number of good practices that could be implemented. Without being exhaustive, the following can be emphasised: (1) the constitutional regulation of states of emergency with the maintenance of the necessary checks and balances; (2) the establishment of effective parliamentary control mechanisms before and during the war, in particular through the creation of a permanent parliamentary committee in charge of these matters; (3) the inclusion of legal experts in military decision-making headquarters, especially in times of war; (4) the involvement of military experts in parliamentary and judicial oversight processes(5) international monitoring during and after the war of the behaviour of public authorities; (6) The development of a forward-looking post-war constitutional framework, fully explained to and involving citizens and specifically designed to address the particular characteristics of each specific conflict.

Cómo citar esta publicación:

Bustos Gisbert, Rafael (11 de octubre de 2023). Seminar Constitution and War. Conclusions. Blog del CEPC


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