I am aware that the chosen topic of my lecture may not appeal to all of you. The majority of the audience might think that it is no use wasting time on this issue, because states will never give up this core part of their national sovereignty. I believe that the international treaties concluded by states, mainly European nations, in the past 50 years show many examples of the reasonable limitation and cessation of national sovereignty.

Going down in history, the principle of national sovereignty, which was established after the 1648 Peace of Westphalia, has gone through significant changes. In the 20th century, especially in its second half, states – in order to be able to take more efficient actions or reach the desired objectives – established contractual systems in which nations, giving up certain parts of their national sovereignty, were looking for and finding solutions for their increasingly serious problems on an international level. Managing this process was relatively easy in the area of economy, however, we cannot mention too many significant results in the area of military service or the disciplinary and criminal jurisdiction of states.

We cannot be satisfied at all with the standard provision of various SOFA agreements, according to which the sending country exercises exclusive disciplinary jurisdiction over its military personnel, and – except for few particular instances – the same applies to criminal cases as well.

For those knowing the conditions of military service, it is evident that command and leadership represents one of the main drives in the organisation of the army, where the system operates on the basis of strict hierarchical relationships.

A firm disciplinary situation is essential so that this system, which is huge and complicated both in size and structure, can operate flawlessly, without any functional disorder and at a high level.

Indeed, the operability and deployability of a given military force may be affected by its bad disciplinary situation.

The national legislative bodies – as a result of 100-150 years of legal development –have now realised and ensured both in substantive and procedural law that disciplinary measures imposed by commanders for certain breaches of discipline shall – within the shortest possible time – have a special and general preventative effect on the broadest possible range of persons, besides ensuring the observation of the fundamental guarantee requirements.

It is evident for me that this principle shall be applied during the performance of tasks within the framework of international military operations abroad. I am sure that all of you know of breaches of discipline or crimes committed by the soldiers of several nations together, and where one of the perpetrator was seriously punished by one of the states concerned and withdrawn from the operational area, while the other states did nothing or almost nothing, and their soldiers continued to do their military service the following day and beyond. This communicates a message for many people that one can do everything in this area without any legal consequences.

It is completely unnecessary to reveal the background and the reasons that lead to such ‘just’ situations after comparing the different laws of various nations, since national legislation cannot be harmonised in every single aspect (i.e. modifying bad solutions to get closer to the good ones); the only feasible way is the conclusion of an international agreement among potential sending countries.

In the light of the actual circumstances, it is obvious that such agreement could not be concluded on a global level, however, there are countries and regions where –considering the level of legal development and the established legal structure s (i.e. the complete legal system) – there are a lot of similarities, and a wide range of international contractual relationships exist. These countries were willing to give up a part of their national sovereignty many times in the past.

I would like to draw your attention to two important factors.

1. The Statute of the International Criminal Court

A long and fierce debate preceded its adoption. The major counter-argument was the unacceptable level of limiting and giving-up nations’ sovereignty. Nevertheless, the agreement came into operation on 1 July 2002, and its Article 28 provides for the liability of commanders and other superiors. Instead of discussing all the provisions of this agreement in detail, I believe it is enough to focus on some relevant issues.

a) the Article mentioned above stipulates the criminal liability of military commanders or persons acting as military commanders, and does not make a difference between national or international commanders, that is, commanders of international military forces have to accept criminal liability under the following circumstances:

  • if crimes are committed by military forces that are under their actual command and control, or their actual authority and control, and they failed to exercise appropriate control over them;
  • if military commanders or persons in charge failed to take alI necessary and justified measures within their competence in order to prevent or curb the crimes committed.

The application of this provision does not constitute too much problem in judging the activity of a national commander, since the power and controlling authority of commanders over their subordinates are full and indivisible (full command). The same obligation is prescribed by international law towards such commanders; threatening those failing to observe them or breaching them deliberately with criminal sanctions.

The situation is more complex in the judgement of the activity and liability of commanders of international forces.

As we alI know it, their scope of authority as commanders is never complete, since certain responsibilities, typically personnel and administrative duties, usually remain within national competence, which means that the commanders of international forces are not entitled to decide upon such issues. Nevertheless, they have a broad scope of responsibility for leading operations and determining the tasks of armed forces, moreover, they actually decide on the ways of implementing mission objectives with the help of their international staff (operational command).
The above-mentioned Article of the Statute imposes further obligations on military
commanders, but many people do not really bother about it, because they are of the opinion that commanders’ liability has also been organic and undividable so far. In accordance with the above-mentioned distinction, this is partially true, since national commanders possess all means by the help of which they can successfully avoid the threat posed by the Statute.
However, we cannot make the sarne statement in the discussion of the liability of international commanders.

Although it is evident that international commanders has have a broad scope of responsibility for leading operations (operational command), however, I regard the ‘obligation’ prescribed by the Statute as disproportionate, in spite of the fact that it is correct in itself and also timely.

This obligation may even be unfair to international commanders, since they – as opposed to national commanders – do not have the powers by means of which they could successfully prevent or avoid illegal acts of their subordinates.

It is the right of imposing disciplinary measures itself that is missing from the competence of international commanders, which is a really effective tool to prevent illegal acts or crimes from happening, and by means of which a commander, from the very first day of missions, can establish a good disciplinary situation, which should obviously constitute the basis of lawful behaviour.

This disproportionateness will prevail until commanders of international forces fail to have disciplinary powers. This obligation has been imposed also on international commanders since 1 July 2002, so we should expand the range of our tools accordingly.

2. New formations, ideas in the area of crisis management

The obviously more efficient new forms of 21st century crisis management are NATO Rapid Response Forces (NRF) and the EU Bottle Group.

In the absence of true empirical facts, I refer to this area as the period of the real feasibility.
This is much more developed military formation, created by countries aiming at a more advanced – or using a popular EU-term: more structured – form of integration, where there is a real chance to elaborate the disciplinary powers of commanders of international forces, that is, the acceptance of a joint military disciplinary code to be applied during crisis management operations.

In my opinion, the time has just come to draw up an international military disciplinary code and to shift our security policy, which is still uncertain and often fragmented alongside national interests, towards deeper and more efficient forms of integration. By this, European countries could – maybe just partly – overcome constitutional crisis. We should not wait until real experiences oblige us to conclude this agreement.

International terrorism represents a heavy burden for many countries all over the world. Countries are looking for a good solution alone and also together with other nations. It is obvious that only a complex answer can be given to terrorism, and one of the important segments of this answer will be the coordination of the military, public order protection and national security cooperation of countries. These objectives may only be achieved and an effective answer may only be given through the further limitation of national sovereignty, and it is definitely not the creation of the joint disciplinary code that will be the most painful part of this process.

II. The substantive provisions of the military disciplinary code

Earlier I thought that the most typical breaches of discipline and minor crimes related to military service should be defined in the legislation process. But after the increasingly atypical crisis management operations of the past few years and the great variety of most unexpected circumstances, and after the consideration of the actual situation, now I believe that it is a dead end street. The adjudication of minor military and other crimes committed by soldiers (typically crimes against property and traffic offences) by international commanders is not yet reality today. (I have to note that – for the stabilisation of the disciplinary situation – it would be especially desirable that international commanders could adjudge the most typical military criminal offences, such as the violation of obligations imposed in various types of services, the breach of reporting or controlling obligations, drinking alcohol, disturbance of peace, commander’ s abuse of power etc.)

It is generally enough to de fine ‘breach of discipline’ in a way to include all unlawful actions that are committed by soldiers through the deliberate or negligent breach of obligations related to their service relationship, and stipulate that this act shall not qualify as a crime.
You may promptly object to this on the grounds that the same unlawful act may qualify as a breach of discipline but also as a crime in the domestic legislation of certain states , which might lead to a situation where the commander of military forces would adjudge a case which is deemed as a crime pursuant to the domestic laws of the perpetrator’s country.

Since we cannot define all the possible facts of a case, moreover, we must differentiate between breaches of disciplines and crimes, it seems obvious to ask perpetrator’ s state to declare how the act committed by the given nation’s soldier can be classified. If, according to the declaration of the authorities, the act committed is deemed as a crime, the commander of the armed forces is not entitled to adjudge the case, but the commander is obliged to report the case to the competent authority and hand over the relevant evidence. In such cases it is worth considering the automatic repatriation of the perpetrator as well, which is desirable for the purposes of general prevention.

As a result of repatriation, the obligation of the perpetrator’ s country to find a substitute for the perpetrator at its own expense within reasonable time should also be specified. It is really a matter of internal legislation how the sending country can recover its costs incurred in connection with such substitution in these cases.
In my opinion, these measures entailing serious financial consequences for perpetrator may have astrong preventative effect.

Naturally, I cannot go through all important substantive and procedural rules in detail because of the time of the present lecture is limited, maybe, it would not even be practical, since my concept would be just one of the many ideas, and as we all know, the final version of agreements is elaborated through complicated coordination and a set of mutual compromises.

I give you some examples of the elements that I find important:

a) in connection with disciplinary proceedings taken abroad, we must emphasise the following:

  • a soldier’ s breach of discipline committed in the operational area shall be investigated and adjudged on site, since the witnesses can be interviewed, the pieces of evidence are available on site and the legal proceedings can be carried out without any delay;
  • there is often a lack of professional competence on part of the national contingents;
  • the sending country is able to investigate breaches of discipline with a considerable delay, though complicated bureaucratic procedures, with unreasonably high expenses, if such investigation can be conducted at all.

Small-size (l5-30 persons) contingents and countries holding only few staff officer positions are in the most difficult situation.
A significant group of these persons lack the legal-administrative competence and experience necessary for conducting either command or disciplinary procedures, consequently, disciplinary proceedings carried out by them are often unprofessional and illegal. Moreover, it also occurs that no proceedings are commenced against the perpetrator at all.

As opposed to the above-mentioned situation, legal advisors, military police officers and investigators work as direct subordinates to international commanders. With their high-level professional competence, considerable experience gained and knowledge of the local conditions, these experts are able to investigate breaches of discipline professionally and quickly on the basis of the available infrastructure.

Using this opportunity, the ‘seriously unfair’ situation mentioned at the beginning of this lecture could be terminated, since an integrated disciplinary and liability system could be established in crisis management operations, and the principle of equal treatment could be followed completely.

b) perpetrator: a soldier pursuant to the NATO SOFA Agreement;

c) considering the seriousness and complexity of the breach of discipline committed, either an investigator or a committee shall conduct the disciplinary investigation and shall make a suggestion to the international commander about the type and degree of disciplinary measure to be applied.

d) in accordance with national legislation, all the acts of proceedings shall be recorded in writing, since these records have a fundamental importance in the appellate procedure.

e) alternative solutions could be elaborated in the appellate system. It is obvious that we must ensure the right of court appeal against disciplinary measures taken by commanders, since, for instance, the undersigning European states are obliged to guarantee (among others) this right pursuant to the Human Rights Convention of Rome.

It is also evident that anyappeals shall be submitted to the competent court of the sending country, and the domestic laws of the state concerned shall be applied in determining such cases.

f) One of the most important milestones of disciplinary proceedings is the enforceability of disciplinary measures imposed. A lot of arguments and counter-arguments could be listed for and against their prompt enforceability or enforceability after the final court decision. It is evident that in our case two contradictory demands of the same state, justified by different reasons, stand in sharp contrast with each other. On the military commanders’ side, there is a reasonable demand for the prompt execution the disciplinary measures imposed without having to wait for the final decision of the court for years, because otherwise neither the special, nor the general prevention goals can be achieved, and the whole case may deliver the message for a small community that actually nothing has happened and the perpetrator can remain in service.

On the other hand, a more important requirement is that states must facilitate the court review of resolutions, which is also based on international treaties and serves the purpose of security in law.

What can be the solution in order to satisfy both requirements?

First and foremost, we have to guarantee the court review of disciplinary measures imposed, and accept the lack of prompt enforceability, so we must find – on the commanders’ side – an action which is not an individual disciplinary measure, thus, which cannot be attacked in itself.
The solution is easy: this action is the prompt repatriation of the perpetrator.
Repatriation should be applied as aspecific administrative-type measure. Its great advantage is that international commanders can remove the soldier violating rules from the operational area very quickly, partly fulfilling also general prevention requirements. It is a question of secondary importance whether we introduce repatriation in full, as a measure that can be applied freely and at any time by the commander, or only make it obligatory on strong suspicion of grave breaches of discipline.

I know, at this point the questions arise how international commanders will be informed about such breaches of discipline and what they can do afterwards if national commanders delayed notifying them of the breach of discipline. Can national commanders be held accountable for it?

The elaboration of a cooperation clause between international commanders and national commanders may provide a solution, in which we would prescribe the maintenance of close and obligatory contact (see the declaration of the competent authority of the concerned country about how the offence in question can be classified). National commanders should have a reporting obligation, that is, they should report all breaches of discipline and crimes they know of to international commanders along with presenting the available pieces of evidence in due time. It is certainly the most sensitive and painful part of the whole issue: decreasing the authority of national commanders and limit ing their discretionary powers. In order to make national commanders fully observe their reporting obligations, we must use the threats posed by national criminal legislation.

Finally, let us go through the possible punitive measures. I must emphasise that the range of punitive measures taken by international commanders cannot be so wide as the range of measures allowed by national legislation. I believe that all the –most serious – disciplinary measures that might lead to the termination of the service relationship of the perpetrator must remain within national competence simply because they would represent an unjustified and disproportionate intervention on international commanders’ part in the future personal legal relationship of the perpetrator.

As far as minor breaches of discipline are concerned, it is enough to use censure or reprimand (which has been in use for a long time), when commanders confront perpetrators with their acts in front of the group of persons they think appropriate, condemning their behaviour.

The most general disciplinary measure is imposing a fine. Owing to the– sometimes considerable – differences between the salaries of soldiers, it is worth specifying the amount of fines as a proportion of the monthly pay of perpetrators, along with defining the upper and lower limits of fines.

Under certain circumstances, for example, in the event of serious breach of service
obligations, the disciplinary measure of demotion could be applied. Similarly to fines, it could only be applied between certain time limits, which means that commanders would have to determine how long soldiers violating rules shall be demoted to a one-rank lower status than their current rank.

All disciplinary measures taken during disciplinary proceedings shall be recorded in writing, and these records shall be sent to the personnel organisation of the perpetrator’ s army to be archived among personnel files.

Similarly to second punishments applied in criminal law, international commanders could also be entitled to take additional measures besides repatriation. Let us just think about how often our soldiers commit disciplinable offences with their various vehicles. It is evident that it is advisable to withdraw the driving license of perpetrators on site and exclude them from traffic for a definite period, which serves the purposes of both general and special prevention and also the safety of third persons. These measures taken by commanders would also be subject to a certain time limit. Commanders would be obliged to notify domestic authorities about the withdrawal of a driving licence. Providing commanders’ a right to make suggestions to the military authorities of sending states is also worth consideration, since there may be some situations in which perpetrators commit disciplinable offences or crimes using their military ranks and positions. Such an offence may prove ab ovo that the perpetrator committing it is either incapable or unworthy of filling his/her position. It is obvious that drawing the attention of national commanders to this is a useful thing.

In the end, I wish to say some words about the free choice of defence counsel. As I know it, the domestic legislation of many countries – mainly due to existing external, objective difficulties – do es not provide the free choice defence counsel in foreign operational areas.
Hungarian disciplinary legislation allows a free choice of defence counsel/representative without any restrictions under domestic circumstances, moreover, military representative organisations may also protect perpetrators’ interests. Theoretically, perpetrators could also use these two alternatives in foreign operational areas, however, it is practically impossible, since civil lawyers may not enter operational areas and the operation of trade unions in operational areas is restricted.

Restrictions imposed by objective, existing circumstances can affect perpetrators’ right to defence. Nevertheless, it would be a reasonable solution to allow legal divisions operating subordinate to international commanders to perform legal counsels’ tasks (following an Anglo-Saxon pattern) if requested or if assigned by commanders.

We should admit that there is room for improvement during joint military operations. To find a successful international answer, we need new initiatives, new legal institutions and higherlevel forms of integrated cooperation. An international disciplinary code could be a useful part of this.

Available in hungarian.