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autonomy of military command is untenable in the lens of democracy. In classic Germany theory, the whole state power is divided into civilian and military parts. This actually reflects a rejection of subordinating the military to the civilian power.112
The middle model, which is usually connected with semi-presidentialism, subjects the minister of defence (who commands the chief of general staff) to the parliamentary inquiries. However, the superior of the minister, the commander in chief (usually) is not responsible to the legislature.
Consequently, the final decision of military affairs still escapes the legislative supervision.
In the executive control model, the principle of civilian control over military is highlighted. The military is accountable to the people through the civilians. Compared with those two patterns, the executive control model varies according to executive-legislative relations. In presidential system, the president as commander in chief, with his minister of defence, has no
obligation to response to the legislature. Then, the executive model in presidential system also shows a deficit of political accountability before the legislature. On the other hand, in the parliamentary system, the whole cabinet is responsible to the legislature, as well as the commander in chief, no matter he/she is the prime minister or the minister of defence. In this view, the executive control model in a parliamentary system performs better than the other two patterns, as well as the presidential executive control model.
In conclusion, the executive control performs better than other two models.
B. Effectiveness
From the perspective of effectiveness, the executive control model still prevails. This is the outcome of the role of use of military in modern world.
112 Klaus Stern, a. a. O., S. 849.
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Currently, the deployment of military is no longer a pure military matter decided by the commander in chief. On the one hand, the deployment of military is usually substantially connected with political aims and outcomes.113 On the other hand, no matter in war or civilian events involved with the attendance of military, it’s important for the command of armed forces to cooperate with other ministries in the cabinet, especially the ministry of foreign affairs and ministry of the interior, in order to facilitate military actions.114
In the independence model, the supreme civilian executive power and the supreme military power is separated. It’s not easy for the Commander in Chief to contact civilian ministries to make sure civil-military cooperation, let alone ordering the ministers to execute his orders. As a result, if the use of force is free from civilian cooperation, then this system can manage it successfully.
However, if civil-military cooperation is inevitable as in most circumstances, it’s difficult for the Commander in Chief or the Premier alone to organize an effective action unless they share a consensus. The separation of military command and executive system is the institutional flaw of this model, which largely impair the effectiveness of the function of public power.
In the middle model, the problem is severe. Firstly, the military command power is overlapped between the Commander in Chief and the cabinet.
Generally speaking, the command orders runs from the Commander in Chief, through the minister of defence to the chief of general staff. However, because the minister of defence is a member of the cabinet, he/she is the de jure
inferior of the head of government. If the minister of defence can order the military directly, whether the Prime Minister holds authority over military command is in question. Especially, the title of Commander in Chief doesn’t always promise substantial powers. For instance, in Austria, the popularly
113 David Luban, supra note 2, at 540.
114 This is also a reason why the German gave up their tradition of independence of military command after World War II. See Walter Roemer, Die neue Wehrverfassung, JuristenZeitung 1956 S. 195.
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elected President is the Commander in Chief, but he acts as a figure head and all the military command authority is exercise by the minister of defence as a cabinet member.115Then it seems unclear which branch the military command power is allocated to, the Commander in Chief or the cabinet (Prime
Minister). If they have distinctive opinions on the deployment of armed
forces, especially when they belongs to different parties, a constitutional crisis might take place, since the military and minister of defence has two
principals.116 Under this circumstance, it’s not easy to clarify who can legally command the military, let alone the coordination between the military and other ministries.
Secondly, even if the Commander in Chief is definitely the supreme leader of the military, civil-military cooperation also depends on the relations
between the Commander in Chief and the Premier. Although the command system runs through the minister of defence to the chief of general staff, the Commander in Chief as the supreme leader of military affairs sits outside the cabinet. Therefore, every civil-military collaboration demands the consensus between the Commander in Chief and the head of government.
The executive control model, by contrast, performs better. Firstly, it has a clear chain of command, nothing like the dual-head structure in middle
model. Secondly, the chief executive has the complete authority over military and civilian affairs/departments, he or she can order certain ministries to coordinate with the military, even by means of setting up a new coordination council.
115 THE CONSTITUTION OF AUSTRIA (1920) Art. 80. (1) Den Oberbefehl über das Bundesheer führt der Bundespräsident.(2) Soweit nicht nach dem Wehrgesetz der Bundespräsident über das Heer verfügt, steht die Verfügung dem zuständigen Bundesminister innerhalb der ihm von der Bundesregierung erteilten Ermächtigung zu.(3) Die Befehlsgewalt über das Bundesheer übt der zuständige Bundesminister (Art. 76 Abs. 1) aus. [Article 80 (1) The supreme command over the Federal Army is exercised by the Federal President. (2) Insofar as, according to the Defense Law, the disposition over the Federal Army is not vested in the Federal President, it lies with the competent Federal Minister within the authorization issued by the Federal Government. (3) The command power over the Federal Army is exercised by the competent Federal Minister (Article 76, Paragraph 1).]
116 Cindy Skach, The “Newest” Separation of Powers: Semipresidentialism, 5 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 93, 97 (2007).