Ilmars DZENEVS LIMITS OF CIVIL RIGHTS AS GUARANTY OF POLITICAL NEUTRALITY OF MILITARY PERSONNEL IN LATVIA. Master s Thesis

Transcription

1 NATIONAL DEFENCE ACADEMY OF LATVIA Ilmars DZENEVS LIMITS OF CIVIL RIGHTS AS GUARANTY OF POLITICAL NEUTRALITY OF MILITARY PERSONNEL IN LATVIA Master s Thesis Thesis advisor: PhD, James S. Corum RIGA 2012

2 DISCLAIMER The views expressed in this paper are those of the authors and do not necessarily reflect the official policy or position of the National Military Academy of Latvia, National Armed Forces of Latvia, Ministry of Defence of Latvia or Government of Latvia. The thesis does not contain information of limited availability; all the sources of data provided are unclassified and authorized for public release. 2

3 ANNOTATION In a democracy civilian control - that is, control of the military by civilian officials elected by the people is fundamental. Latvia has established a constitutional and legal basis for civilian control of the military and its practice accords with the formal prescriptions since independence was gained. However, civilian control also depends frequently on the individuals involved: how each side views its role and function; the public respect or popularity possessed by a particular politician, or political institution, or military officer, or military service. This thesis analyses certain patterns in civil-military relations in Latvia. Civil-military relations share the basic features and are copied from the Anglo-Saxon model as place a strong emphasis on civilian political control of a professional military, Latvia has also to cope with mature Europe democracies that have advocated a citizen-soldier concept. However, the Latvian military forces have not fully defined and resolved professional ethics in terms of advance a human rights practice. The exercise of political rights and the right of freedom of expression within a context of the political neutrality of the armed forces members still needs more clarity. In this challenging environment private values can conflict with public policy. With the transition to all volunteer forces Latvia soldiers have reached point where they have a need and an opportunity to better define the military as a profession and clearly articulate its professional ethic and codify what it means to be a military professional. I will analyse the civil-military theories developed in the Unite States of America and compare them Latvian concepts. Members of Latvian professionals of arms have an obligation to debate theses issues in order to stimulate thoughtful discussion and broader debate about the proper limits of acceptable and effective professional conduct within legislative framework. Keywords: civil-military relations, military professionalism, political neutrality, civil rights. 3

4 ANOTĀCIJA Demokrātiskas sabiedrības viena no pamatiezīmēm ir valsts bruņoto spēku civila kontrole jeb pilsoņu ievēlēto civilo pārstāvju kontrole pār valsts bruņotajiem spēkiem. Latvijas konstitūcija un izveidotā tiesiskā bāze realizē bruņoto spēku civilo kontroli atbilstoši starptautiskajai praksei un principiem. Taču, lai prakse darbotos institucionālā līmenī, šajā mijiedarbībā ir jābūt arī indivīdiem, kas skaidri zina savas funkcijas un pienākumus, apzinās savu lomu procesā un veido tādu uzvedības modeli, kuru no viņiem sagaida citi procesa dalībnieki. Maģistra darbā ir analizētas civil-militāro attiecību nianses individuālā līmenī. Bruņoto spēku struktūra, kuru Latvija ir veidojusi, līdzinās anglo-sakšu modelim ar uzsvaru uz aizliegumiem un kontroli. Ierobežojot militārpersonu pilsoniskās brīvības un tiesības tādejādi, nodrošinot to politisko neitralitāti. Rekomendācijas no Eiropas Savienības un Eiropas Drošības un sadarbības organizācijas iedrošina mazināt militārpersonu pilsonisko tiesību ierobežojumus un veicināt karavīru pilsonisko atbildību. Šobrīd iespējas un vēlmes realizēt savas politiskās un vārda brīvības tiesības dažreiz konfliktē ar vēlamo militārpersonu vienotu profesionālo ētiku un kopēju izpratni par sagaidāmajiem uzvedības modeļiem sabiedrībā. Eiropas demokrātisko vērtību vilinājums ne vienmēr ļauj savu personisko vēlmi sabalansēt ar sabiedrības pamatvērtībām. Pāreja uz profesionālo dienestu sevišķi ir saasinājusi vajadzību militārpersonām skaidri apzināt savas profesijas standartus, definēt uzvedības ētiku un identificēt profesijas vērtības. Darba mērķis ir analizējot civil-militārās teorijas, militārās profesijas vairāk kā 200 gadus attīstības vēsturi ASV un salīdzinot to ar situāciju Latvijā apzināt ētisko profesijas principu esamību un tiesisko ierobežojumu ietekmi uz militārpersonu vēlmi realizēt savas pilsoņu tiesības un brīvības Latvijā. Rosināt pārdomātu un plašāku diskusiju par militārpersonu iespējam realizēt savas tiesības balansā ar vēlamo bruņoto spēku politisko neitralitāti, rosināt dialogu par profesionālās ētikas principiem un militārās profesijas vērtībām. Atslēgas vārdi: civil-militārās attiecības, militārā profesija, politiskā neitralitāte, pilsoniskās tiesības. 4

5 TABLE OF CONTENTS Introduction 6 1. MILITARY PROFESSION AND CIVIL RIGHTS Social-philosophical view of military profession Civil rights and limitations on military personnel POLITICAL NEUTRALITY OF MILITARY PERSONNEL IN THE US History of military profession Legal limitations of political rights Summary POLITICAL NEUTRALITY OF MILITARY PERSONNEL IN LATVIA History of military profession Legal limitations of political rights Summary PRACTICAL RESEARCH Research design Data analysis Summary Conclusions and recommendation Thesis List of abbreviations Bibliography Appendices Appendix 1 An example of interview data reduction.. 89 Appendix 2 Interview on restrictions of civil and political rights of military personnel in Latvia Appendix 3 Transcript of interview with the Parliamentary Secretary of Ministry of Defense of Latvia Veiko Spolitis.. 93 Appendix 4 Transcript of interview with Riga City Council member Dainis Turlais Appendix 5 Transcript of interview with member of 11 th Saeima of Latvia Karlis Kreslins Appendix 6 Transcript of interview with professor of University of Latvia, Dr.paed., Zaneta Ozolina Appendix 7 Letter with answers to interview questions from Ombudsmen of Latvia

6 INTRODUCTION Human rights are rights to which every person is entitled to as a result of the simple fact of being human. Despite the peculiar nature of military service, soldiers are human beings citizens in uniform and therefore entitled to human rights and subject to the application of human rights laws, although these laws can be applied in a military context and adapted for specific military conditions. Carl von Clausewitz said The end for which a soldier is recruited, clothed, armed and trained, the whole object of his sleeping, eating, drinking, and marching, is simply that he should fight at the right place and at the right time 1. This remains true as ever, but despite his special status in the society, the soldier is still a citizen. In the words of the European Court of Human Rights (ECtHR) human rights do not stop at the gates of army barracks. 2 Respect for basic human rights and freedoms for all, including military personnel, is not a just a moral obligation, it is also a part of international human rights law. Most states have ratified international treaties obligated to respect and protect the rights of personnel serving in their armed forces. Today the law of international human rights is based on the United Nations (UN) Charter, supplemented by Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the UN Treaty. These obligations are further complemented by regional legislation in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Article 1 of the ECHR obliges all contracting states to secure for everyone within their jurisdiction the rights and freedoms under the Convention. The nation of Latvia is a signatory to these treaties and agreements. Therefore, the citizenship and protection of rights for military personnel also apply to the members of the Latvian armed forces as well as to the civilian citizens of Latvia. Since the end of World War I, Western democracies have effectively expanded the civil and political rights of military personnel on active duty. Perhaps the most advanced case is Germany, where military personnel on active duty can run for elective office. Practices vary from one nation to another, but, in general, the legitimacy of military service is based on the recognition of the soldier s civil and political rights as citizen. However, to be soldier is really not a job like any other because the possibility of being killed or wounded in combat is a very obvious distinguishing feature. Another feature is that the citizen in uniform can be legally ordered to go to war by his nation and can be ordered to fight and kill other legitimate 1 Carl Von Clausewitz, On War, eds. Michael Howard and Peter Paret (Princeton: Princeton Univ. Press, 1976), p Alastair Mowbray, Cases and Materials on The European Convention on Human Rights (Oxford: University Press, 2007), p

7 combatants under the internationally-recognized laws of war. Even in times of peace, historically the armed forces and their personnel are commonly regarded by states as holding a special and unique position under the law because of the access to lethal weapons and to sensitive defence information necessitates strict discipline and that has an inevitable impact on the exercise of human rights. Consequently, while individuals do not lose their human rights by joining the armed forces, states can limit the exercise of human rights due to requirements related to the particular characteristics of military life. These limitations can be seen in relation to several of the civil and political rights mostly those that allow people to participate in public affairs the right to privacy, the freedom of thought, conscience, and religion or belief, the freedom of expression, the freedom of association and assembly. Hypothesis: The hypothesis of this thesis is: Latvia can adapt national laws and policies concerning human rights of military personnel to conform the western best practices. The original research aspect. One fundamental question is whether the established reasons for the limitation of the exercise of civil and political rights by armed forces personnel are relevant in a developing democratic society such as Latvia s? How does a state reconcile political neutrality of the armed forces with exercise of political rights of military personnel? Currently these issues are important because the Latvian armed forces operate as part of the North Atlantic Treaty Organization (NATO) Alliance and the European Union (EU), and are currently involved in active operations - both peacekeeping operations and conflict operations in places like Afghanistan as part of an alliance of Western and democratic nations. Therefore, as part of international alliances and organizations that stress the fundamental rights of the citizen, it is essential that Latvia and its armed forces have a fully developed system of law and regulations on this subject. However, the legal limitations do not guarantee that minds and hearts of armed servants in Latvia are undisputedly following democratic traditions of matured liberal democracies in the Western European or American ones. Latvian forces have not fully defined and resolved professional ethics conflicts in terms of advance of human rights. The exercise of political rights and right of freedom of expression within a context of the political neutrality of the armed forces members still needs clarification. In this challenging environment private values can conflict with public policy. With the transition to all volunteer forces Latvia soldiers have reached point where they have a need and an opportunity to better define the military as a profession and clearly articulate its professional ethic and codify what it means to be a military professional. Soldiers are subjects to civilian control, not only because of the rule of law, but also because of self-imposed professional standards. Nevertheless, some efforts to highlight the historical traditions of 7

8 Latvian soldier s ethics as well adopting and revising old regulations from the Soviet era was done. In general there is no common, clear and concise understanding what the Latvian military code of conduct really is. There are few articles in military literature that discusses military culture or behaviour. However, this study will be first to sets the social phenomena of civil military relations in Latvia in its broader conceptual context. It analyses the academic background of civil-military relations in context of military professionalism and compares the historical development of soldier s profession. This study will obtains some perceptions of social leaders about role of armed forces members in Latvian society today. Due the limitations of the research cannot pretend to be comprehensive however this study is a starting point for further discussions about the proper limits of acceptable and effective professional conduct within legislative framework of profession of arms in Latvia. The aim of study is to examine the current situation in Latvia as it pertains to the civil rights of its armed forces members, to identify the gaps and problem areas and to propose solutions. It will look at the emerging concepts and practices regarding the rights of military personnel in the Western and allied nations - notably the NATO and EU nations. There are two major areas to be examined - the state of the rights of military personnel in context of professionalism and legislation. The essential question is whether the current Latvian legislative regulations and military culture is adequate for dealing with both conditions, and whether the current Latvian situation is in line with the best practices that have been developed by the major Western democracies, especially United States, upon which the Latvian armed forces are modelled. By asking these questions and making these comparisons this study hopes to develop recommendations for the regulatory framework, norms and standards in Latvian NAF, based on the best foreign practices and in coordination with the laws and constitution of Latvia. The object of study is the civilian control over armed forces in Latvia - fundamentals of democratic civil-military relations. The subject of study is political neutrality of military personnel in Latvia. The objectives of study is to help support the on-going effort of the Latvian armed forces to mature and develop the concepts of rights and regulations for soldiers in light of recent experience and best practices of democratic allied nations. 1. To analyze civil-military theories in context of military professionalism. 2. To analyze the main international and regional human right treaties and their potential application to members of the armed forces. 8

9 3. To compare the evolution of the military profession in the United States of America (US) and Latvia and to examine the application of legal limitations of civil rights to ensure political neutrality. 4. To conduct practical research to obtain an understanding of principles of the civil-military interaction. 5. To indentify potential gaps in current legislative framework and problems areas in the social domain of civil-military interaction. 6. To initiate thoughtful discussion and broader debate about the proper limits of acceptable and effective professional conduct within legislative framework. 7. To offer solutions to improve the current situation and propose recommendations to further development of regulations for rights in balance with political neutrality for soldiers. Furthermore, the study will examine the state of the regulations concerning the individual rights and protections of Latvian soldiers to determine whether these are adequately protected by current regulations or agreements. If there are gaps, I hope to answer the problems identified with concrete proposals based on other nation s experience and best practices, as well providing some insight into Latvian social elite s expectations of their armed servants service obligations and freedoms. The practical research. The aim of the qualitative research is to obtain and examine perceptions and understanding of the governing party or social elite in the civil-military interaction. The tasks are: 1. To find an understanding of the role of military personnel in the social and political processes of the state from civil perspective of civil-military relations in Latvia. 2. To clarify what behavior is expected of military personnel in the context of political neutrality of individual members of the armed forces in Latvia. 3. To locate the possible gaps in legislation and regulations. 4. To find what has to be done to improve or sustain current civil-military relations. 5. To initiate an open discussion about the active role of members of armed forces in the political and social process. The data collection method that has been chosen is the interview. The main reason is because the interview best fits the aim of research project to find insight to sociological phenomenon and to initiate and facilitate discussion. In order to explore the content of 9

10 perceptions about professional conduct and behaviour, I will conduct qualitative interviews with elites in society who can provide insights on this phenomenon. Interviews allow the respondents to discuss several subjects in different ways than in opinion pools or party manifestos. Thus, when respondents are asked about issues, the response allows us to get a deeper look in how they think. The response target audience includes members of Parliament of Latvia, members of Ministry of Defence (MOD), representatives of Latvia in international organizations and academics. The limitations of study. There are some fundamental limitations to this research: 1. In making comparisons of military and national law concerning human rights this study will use only the practices of the Organization for Security and Cooperation in Europe (OSCE) nations and will not address the practices of the other states. 2. The study focuses on reconciliation of civil rights of individual members of military and does not discuss political neutrality of military organization as such. 3. Only members of the professional armed services are subjects of research and this work does not refer to volunteers and civilians in the armed structures in Latvia. 4. The research is mainly focused on the political rights and activities of military personnel and right of freedom of speech. 5. The practical interview is conducted with the governing party in civil-military interaction. Due to the time consuming process of data collection and the analysis and interpretation process, other participants of civil military relations are not included in this particular research. The organization of thesis paper. The study will be divided into four chapters. The first is an introduction where the definitions and methodology and limits and objectives of the research will be stated. A review of the fundamental literature on the subject will also be included. Chapter one of the study will begin by analyzing and evaluating the concept of military individual rights under international law and common to the Western nations that have a highly developed laws in these fields. This chapter discusses the main international and regional treaties and their potential application to members of the armed forces. The most important literature will be reviewed and the fundaments of military culture and professionalism are described. Chapter two will discuss the issue of soldier s rights in the US. This chapter will analyze the military profession in the US and the described mechanism of derogation of rights of military personnel that prevails in the Anglo-Saxon tradition. This chapter will outline the 10

11 regulations concerning political rights for members of the armed forces, the limitations on their rights in order to preserve the political neutrality of the armed forces. In a related fashion, the restrictions imposed on the freedom of speech will be examined. Additionally, emerging tendencies of the liberalization of society and the respective impact on military personnel by these changes are noted. Chapter three will discuss the limitations placed on the rights of Latvian military personnel and history of Latvian military profession is also described. This chapter will focus on the treaties, norms and standards and regulations that impact the rights of personnel of Latvian NAF. Chapter four will contain the theoretical background of practical research; provide methodology of data collection, interpretation and analysis. The conclusions of the practical research will address any recommendations that ought to be applied to Latvian law and Latvian military regulations. In the conclusion the Latvian conditions will be compared to those of the US because the scholarly literature on the subject in America is quite extensive. A comparative analysis will be built on the US legislative and practical experience and similarities that can be found in Latvia. Also, some best practises from Europe and allied nations will be noted. The review of theoretical part with data revealed from practical research is the basis for suggestions and proposals to pertain the civil rights of its armed forces members in Latvia as well to foreseen possible implications and set directions for future investigations. The US is taken as basis for comparison because militaries have two centuries of operating with these issues, waste of literature and legal traditions. The US is the lead west nation in terms of civil-military relations. In the appendices some of the most relevant interviews transcriptions are presented in order to illustrate samples revealed of target auditory what have participated in practical research. The literature review. The analysis of military-social dimension is based on philosophical thesis of Niccolo Machiavelli and Thomas Hobbes, as well as thoughts of Jean Jacques Rousseau, Immanuel Kant and Alexander Hamilton. The overview of scholarly literature about professionalism and civil military relations includes fundamental writings of Semuel P. Hungtington The Soldier and The State, 3 Morris Janowitz The Professional Soldier: A Social and Political Portrait, 4, Alfred Stephan Arguing Comparative Politics, 5 3 Samuel P. Hungtington, The Soldier and The State. The Theory and Politics of Civil-Military Relations (Cambridge, Massachusets: The Belknap Press, 1959). 4 Morris Janowitz, The Citizen Soldier and National Service, Air University Review, November-December, (1979). 11

12 Everet C. Dolman The Warrior Stat 6 and others. The legal section is based on international human rights treaties, domestic laws and regulations and supported by comments provided in Peter Row s book The Impact of Human Rights Law on Armed Forces 7 and Georg Nolte edition of Comparison of European Law Systems. 8 The legal section of this study is supported by publications from the Organization for Security and Cooperation in Europe including the Handbook of Human Rights and Fundamental Freedoms of Armed Forces Personnel 9 and the publications of Geneva Centre for the Democratic Control of Armed Forces and European Association of Military Organizations. For overview of modern tendencies extracts from various scholars such as Sam C. Sarkesians, Charles C. Mosco s and Peter D. Feaver s publications are used with a focus on the requirements for political neutrality and the restrictions of freedom of speech on military personnel. Relevant articles from newspapers and academic journals are provided. The definitions. Human rights are the rights that every human being automatically qualifies for at birth. They cannot be denied because of the colour of one s skin, religion, age, or other personal factors. Central to the concept of human rights is the protection of human dignity. The Universal Declaration of Human Rights specifies, Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. 10 Civil and political rights are a class of rights and freedoms that protect individuals from unwarranted action by government and private organizations and individuals, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression. The aim of that struggle was to secure the status of equal citizenship in a liberal democratic state. Civil rights are the basic legal rights a person must possess in order to have such a status Alfred Stepan, Arguing Comparative Politics (Oxford: University Press, 2010). 6 Everett C. Dolman, The Warrior State (New York: Palgrave Macmillan, 2004). 7 Peter Rowe, The Impact of Human Rights Law on Armed Forces (Cambridge: University Press, 2006). 8 Comparison of European Military Law Systems, ed.georg Nolte (Berlin: De Gruyter Rechtswissenschaften Varlays-Gmbh, 2003). 9 OSCE/ODIHR, Handbook on Human Rights and Fundamental Freedoms of Armed Force Personnel (Warsaw: ODHIR, 2008); available at: [accessed: 22/02/2011]. 10 UN, The Universal Declaration of Human Rights (10 December 1948); available at: [accessed: 19/01/2011]. 11 Civil Rights Definition; available at: [accessed: 10/01/2011]. 12

13 Political rights, along with civil rights, are primarily designed to protect the individual against state interference, and are immediately applicable. Political rights can be seen as covering the right to political participation, that is, citizens right to seek to influence and participate in the public affairs of the society to which they belong. Political participation can take many forms, the most notable of which is included in the right to vote. However, it also covers the right to join a political party; the right to stand as a candidate in an election; the right to participate in a demonstration; and freedom of association. Political neutrality is the requirement that state servants must be apolitical when carrying out their duties. Persons working in the state services are required to act in the course of their duties in a politically neutral manner. This includes the requirement to act impartially and to implement the state policies. Professions are identifiable vocations whose member s discretionary practice is warranted by society in expectation of reliable and effective application of some specialized knowledge or skill, mastery of which requires continuous study and practice. Professions are work-related groups of practitioners who develop a sense of corporate identity and demonstrate a sense of collective responsibility for quality of service delivered and the reputation of their practice. 13

14 1. MILITARY PROFESSION AND CIVIL RIGHTS The concept of professionals versus citizens reprises one of the classic debates in military-social philosophy. States that rely on indigenous militias will tend to develop more liberal democratic institutions than states that are reliant on mercenaries. The amount of academic literature about this subject is vast, and the preponderance of evidence is clearly weighted to support the concept of citizen militias as a democratizing force. However, technological progress has changed the perception of the military profession over time, and the liberal model of the volunteer soldier has become more convincing. Moreover, the rise of the liberal model of the soldier was not only a consequence of the changing use of the armed forces; it was also a reflection of broader normative changes in favour of liberal ideal such as individualism and human rights. This study will also analyze the academic view of the military profession and human rights development in line with imposed limitations to preserve the political neutrality of military personnel Social-philosophical view of military profession The impact of the citizen army on political institutions has antecedents in the writings of Niccolo Machiavelli and Thomas Hobbes. Machiavelli found that the classic Roman citizen soldier was superior to the renaissance era s professional mercenaries. On the opening page of Art of War Machiavelli describes the professional soldier a completely corrupt 12 and believed that the state and could be saved through a return to the politico-military institutions of Greece and Rome. Thomas Hobbes believed that the passions of citizen armies provoked the demise of ordered English society and preferred the institution of mercenaries for all but the direst national circumstances. Hobbes rejected the idea to of instilling political passions in individuals through misplaced notions of patriotism. 13 However, some argued that the professional efficiency of the mercenary could be used for limited warfare to ensure the states authority. Jean Jacques Rousseau recognized a citizen militia as the military manifestation of democracy. 14 Immanuel Kant favoured an armed civilian populace because it would make war less likely than relying on smaller professional 12 Niccolo Machiavelli, The Art of War (Wilder Publications: Radford, 2008), p Thomas Hobbes, Leviathan, ed. Richard Tuck (Cambridge University Press: Cambridge, 1991). 14 Carl Joachim Friedrih, Man and His Government (New York: McGraw-Hill, 1963), p

15 forces. 15 Some of America s founders argued that a well-regulated militia is the most natural defence of a free country and standing armies are dangerous to liberty. 16 The origins of the citizen-soldier tradition have been attributed to ancient Greece and Rome, as well as to the American and French revolutions. The main idea of this concept was that soldiers should be citizens, and citizens should be soldiers. In North America and Europe citizenship rights, in particular the right to vote was to be extended in line with military service. In Anglo-Saxon countries the ideal of the citizen-soldier was that of the volunteer, and national military service would usually be entered into voluntarily. Mass conscription for the US in peacetime was introduced following the Second World War. In continental Europe the continuous threat of an invasion by the Warsaw Pact legitimized the continuation of the universal draft during the Cold War. Several characteristics shape the citizen soldier. The first is the link between citizenship and military service in the terms of a real or imagined social contract between the citizen and the state. The state protects its citizens, while the citizen serves in defence of his country. Under what conditions, and in what form this service can be required, has varied historically as well as among countries. The second characteristic of the citizen-soldier is the lack of the professional identity as military. When the citizen soldier engages in combat, his or her motivation is essentially self-defence. As the modern citizen obtains public rights through the existence of the state the defence of the state, becomes a defence of citizenship. The third characteristic is the joint of social, political and military roles within the concept of the citizen-soldier. The citizen - soldier does not have to separate his or her linkages with family and friends in order to develop a new corporate identity as a professional and to shift this primary commitment to a military unit. Neither is the citizen-soldier asked to abstain from political engagement. Moreover, the citizen-soldier is encouraged to act this way as political activity is understood to be one of the hallmarks of good citizenship along with military service. However, in the age of increasing technological complexity, professional soldiers can often manage complex tasks of modern warfare better than conscripts. The majority of members of society have no passion for foreign adventure and war, and so armies should routinely be levied trough taxation and hire. William McNeil, one of the leading American scholars on the history of civil-military relations has an opposite view to Niccolo Machiavelli: William McNeil is convinced that the Venetian system of hired soldiers was more effective 15 Immanuel Kant, The Perpetual P eace, trans.ted Humphrey (Indianapolis:Hacket Publising Company, Inc, 2003), p Alexander Hamilton, James Madison and John Jay, The Federalist Papers, ed. Charles Rossiter (New York: Penguin, 1961), p

16 than the militia of Florence, due to an inability of militia to adjust to the modern requirements of battle. 17 Karl von Clausewitz wrote: No matter how carefully we seek to combine the citizen and the soldier in the same individual, no matter how much we may regard wars as affairs of the whole nation, no matter how far our ideas may depart from the mercenary armies of former days, it will never be possible to dispense with the special nature of the professional routine. 18 The dynamics of the changing world demands new approaches, but does not exclude the idea of citizen developed in previous centuries. Therefore, at beginning of twentieth century technological progress has forced the military to a new dimension professionalism. Although, the military professional as an ideal type had its origins in the officer corps of the 19 th century, 19 the shift to all volunteer forces in the United Kingdom in 1962 and in the US in 1973 can be credited with maturation of the model. Similarly in Europe, the shift towards professional armies has been linked to an increased demand for international operations and reduction of armed forces after Cold War. The features of the professional soldier model have been extensively analyzed by the American scholar Samuel P. Hungtington. In particular Samuel P. Hungtington identifies three features of the professional soldier: a politically neutral sense of duty to the state, military expertise and a professional identity. 20 Morris Janowitz finds similar elements which he calls personal fealty, the pursuit of glory, gentlemen conduct and brotherhood. 21 Both, Samuel P. Hungtington and Morris Janowitz recognize that the most important feature that distinguishes the professional soldier from the citizen-soldier is the sense of duty to the state as an abstract entity and the related requirement of political neutrality. This is typical of the Anglo-Saxon system of civil service and quite opposite to the other traditions, such as in Germany, that hold that civil service and political activity do not need to be separated. In Morris Janowitz`s studies the self-image of the professional soldier and, in particular, of the officer, was one of the dedication and self-sacrifice for the nation: They believe that they, as the standard bearers, embody virtues which transcend crass commercialism Toughness and 17 William H. McNeil, Pursuit of Power: Technology, Armed Force, and Society since A.D (Chicago: The University of Chicago Press, 1982), p Carl Von Clausewitz, War, Politics and Power, trans. Edward Colins (Washington: Regnery Gateway, 1962).p Samuel P. Hungtington, The Soldier and The State. The Theory and Politics of Civil-Military Relations (Cambridge, Massachusets: The Belknap Press, 1959), pp Ibid, p Morris Janowitz, The Citizen Soldier and National Service, Air University Review, November-December, (1979), pp

17 tenacity are moral virtues which adhere to the officer, and which the officer must exemplify to civilian society [47, 229]. 22 American military sociologist, another noted the American scholar of civil-military relations Sam C. Sarkesian recently agreed, Generally, the professional is not motivated by financial gain but by patriotism and service to society. 23 In spite of the rise of postmodern values since 1980s and the emergence of what Charles C. Moskos has termed an occupational view of the military profession, 24 these sentiments could still be found among the all volunteer forces. Concerning integration with society, Sam C. Sarkesian recommends that, in spite of the changed national and international security context, a degree of separation (psychological distance) must be maintained between US society and the military profession to ensure military capability and combat effectiveness. The political-military dynamics resulting from the role of the profession in politics should ensure nonpolitization of the profession. 25 Another characteristic of the professional soldier is the development of military expertise through extended schooling and training. Unlike Samuel P. Hungtington, who equates a profession with a vocation, Morris Janowitz regards these characteristics as the defining aspect of the professional soldier. The last characteristic of the professional soldier mentioned by scholars is the development of a collective identity of the armed forces and their separation from the broader society not only by regarding themselves as somehow special, but also due the restrictions on common civil and political rights to compared with other citizens. However, as early as the 1960s the question of the political neutrality of the professional soldier was debatable. In fact, it can be argued that military strategies and tactics might be non partisan, but they are never be politically neutral because of the increasing prevalence of liberal values in society and the victorious march of human rights for individuals opened a new dimensions in society. In recent years scholar Alfred Stepan has noted a change in the emphasis that Samuel P. Hungtington and Morris Janowitz detailed. 26 The old professionalism dealt with concern international conflicts, while the new concept of professionalism was focused on developing 22 Morris Janowitz, The Professional Soldier: A Social and Political Portrait (New York: The Free Press, 1968), p Sam C. Sarkesian, John A. Williams and Fred B. Bryant, Soldiers, Society and National Security (Boulder, CO: Lynne Rienner, 1995), p The Postmodern Military: Armed Forces after the Cold War, eds. Charles C. Moskos, William A. John, and David R.Segal, (New York: Oxford University Press, 2000), pp Sam C. Sarkesian and Robert E.Connor Jr., The US Military Profession in 21 st Century (London: Frank Cass Publishers, 1999), pp Alfred Stepan, Arguing Comparative Politics (Oxford: University Press, 2010), pp

18 states, a defensive and internally focused form of conflict. Samuel P. Hungtington believed that the professional soldier, engaged in external threat, shows no interest in politics because it takes time away from preparation to war. Alfred Stepan argues that the new military professionalism was focused on careerism and state development. 27 Consequently, the state as supplier and supporter of military must develop at a rate sufficient to meet the perceived needs of the military. Otherwise the military will feel compelled to intervene. In other words, to exercise political rights and even become politically involved. This support that an outwardly or offensively focused military will be less inclined to interfere in domestic politics. An offensively oriented military organization is less interested in politics than in defensively oriented military organization. For military organization to have a positive effect on liberalization and democracy, its police or noncombatant functions must be kept to an absolute minimum. Furthermore, Charles C. Moskos was perhaps the first scholar to identify the beginnings of the emergence of the military entrepreneur. In the mid-1980s he observed among professional soldiers in the US the rise of an occupational view of the military profession. He argued that volunteers were joining the armed forces because of self interest rather than for patriotism. Increasing consideration was given to the financial rewards of military service. 28 Therefore, the military profession becomes regarded as a profession similar to other professions with consequences in the political and civil rights sphere for a possible reconsidering of implied restrictions of rights. There appears to be a fine line between the professional soldier in an all-volunteer force who views his or her occupation as a job rather than a vocation. There are several features that clearly distinguish the military employee from the professional soldier. The first is a possible disconnect between military service and the duty to the state. This is especially enhanced by participation in international missions, where soldiers seem to work for international organization and other nations, but not for his or her own nation. Sam C. Sarkesian argued: the primary distinctive feature of the military profession is ultimate liability, the willingness to give one s life as part of the professional ethos. Also, its sole client is the state [61, 15]. 29 The military employee in general does not necessary recognizes this ultimate liability. Although, as soldier he or she usually swears allegiance to the state and the constitution, the military employee is not bound to anybody but himself. 27 Alfred Stepan, Arguing Comparative Politics (Oxford: University Press, 2010), pp Charles C. Moskos, What Ails the All-Volunteer Force: An Institutional Perspective, Parameters, Journal of US Army War College, Vol. 31, No 2 (2001), pp Sam C. Sarkesian, John A. Williams and Fred B. Bryant, Soldiers, Society and National Security (Boulder, CO: Lynne Rienner, 1995), p

19 The second characteristic is the profit motivation of the military employee who has no doubts or uncomfortable feelings about the primacy of monetary gain in his or her choice of employment while military professional typically ranks patriotism higher in his or her motivation to join the armed forces. Finally, the professionals primary categorization is in terms of rank while professionals with a tendency to regard military profession as job, with his or her particular skill. This can be explained by increasing tendency in favour of liberal ideas in society such as individualism and human rights. Changes in the national and international security environment have forced soldiercitizen and professional soldiers who were still bound to defence of their homeland and nation to switch over to operations other than war as peacekeepers, and humanitarian helpers. This is not a problem for professionals who tend to regard the military as a monetary arrangement because they go wherever the bigger profit is gained. Within the professional volunteer armies this shift is illustrated by strengthening of the individual rights of the soldier. Among others, these rights include rights to absentee ballot vote, the rights of women to join the armed forces, and the rights of homosexual Civil rights and limitations on military personnel The beginning of the human rights idea cannot be found in documents. It appears in philosophic tracts. The first principles of democratic ideas appear in the work of ancient thinkers in Greece and Rome. For instance, Plato in his work On the State formulated the democratic state. Aristotle discussed the relationship between the city and man. 31 However, ancient philosophers posited laws of nature to which individuals might appeal against unjust human laws, they never positioned natural rights. Human theory as we know it today evolved out of the intellectual mix of Renaissance humanism and the Protestant Reformation and developed and increased throughout the Enlightenment. One of the first legal declarations of human rights to emerge from this process was England s Petition of Rights, issued by Parliament in It outlaw forced gathering of soldiers, trial by martial law, and mandatory loans to the king. The next was the bill of rights, which Parliament issued in 1689, a document that officially rendered England a constitutional monarchy where Parliament, not the king, made the laws, levied the taxes, and maintained the army and confirmed rights for all subjects to petition the king, right to bear arms, and for all 30 The Postmodern Military: Armed Forces after the Cold War, eds. Charles C. Moskos, William A. John, and David R.Segal, (New York: Oxford University Press, 2000), pp Cilvēktiesības pasaulē un Latvijā (Human rights in Latvia), ed. Iveta Ziemele (Riga: Izglītības soļi, 2000), p

20 members of Parliament the right of freedom of speech during debate. In the next century there appeared three major human rights documents. The first was the Virginia Declaration of Rights written by George Mason that inspired the opening paragraphs of the Declaration of Independence. There one can find the proclaimed existence of human rights, including the right to enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. 32 It protects against unwarranted searches and seizures and guarantees the right to face jury trial, right to avoid self-incrimination, and freedom from excessive bail and cruel and unusual punishment. The second major human rights document was the Declaration of the Rights of Man and Citizen written by Emmanuel Joseph Sieys and adopted by the Constituent Assembly of France in It starts, men are born and remain free and equal in rights these rights are Liberty, Property, Safety and Resistance to Oppression. 33 The specific rights are revealed in seventeen clauses of the Declaration; including the freedom of opinion, particularly religious opinion, speech, writing and publishing as well as the liberty to do whatever does not injure another person and is not hurtful to society. In 1789 the US Congress adopted the first ten amendments to the Constitution of the US, the Bill of Rights. These amendments proclaim freedom of religion, speech, the press, and assembly. Also, the right to petition the government, bear arms, receive due process of law, and confront witnesses in a speedy, public jury trial and others are made clear. In their completeness, these amendments form a definitive gathering of the best legal thinking on individual human rights from the preceding two hundred years. Progress was forced by trauma of World War II with the widespread massive and horrific human rights violations carried out by Nazis. With foundation of the UN the term human rights emerged, however, without a clear definition of such. The Commission on Human Rights was established in 1946 led by Eleanor Roosevelt as chairman. The Commission studied many human rights efforts that had come before, including writings of leading philosophers and jurists as well as the documents of various labour, law, religious and governmental organizations. The outcome was the recognition of the need for an International Bill of Rights which would be comprised of three main elements to a broad declaration of human rights to provide a common moral standard, a limited legal convention or treaty, and a system of enforcement. The Universal Declaration of Human Rights (UDHR) was adopted in Forty-eight countries voted in favour of declaration and eight abstained. No country 32 US, Virginia Declaration of Rights (12 June 1776); available at: [accessed: 10/12/2010]. 33 France s National Assembly, Declaration of the Rights of Man and Citizen (20-26 August 1789); available at: Citizen [accessed: 19/01/2011]. 20

21 voted against. Article I begins with assertion that all human beings are born free and equal in dignity and rights. 34 The Declaration proclaims the right to life, liberty, security, an adequate standard of living, medical care, education, privacy, property, thought, conscience, opinion, religion, expression, peaceful assembly and association, leisure, social security, and equal personhood before the law. It states that no one may be held in slavery or servitude, or arbitrarily arrested or exiled. The UDHR and the second element, specified agreements that are binding on the ratifying countries, constitute an International Bill of Rights. These specified agreements are four documents: the International Covenant on Economic, Social, and Cultural Rights (ICESCR); the International Covenant on Civil and Political Rights (ICCPR); and two optional protocols. Both Covenants and the First protocol establish an individual complaint mechanism and were adopted in The second protocol which aims to abolish the death penalty was adopted in The third element of the international Bill of Rights the Human Rights Committee in 1966 and the Committee on Economic, Social, and Cultural Rights in 1985 was established as system of enforcement. Human rights law is also complemented during times of military conflict by international humanitarian law. The main treaty is the Geneva Convention of 1949, however, this study focuses on the rights of military personnel in peacetime rather than in armed conflicts. In Europe UN treaty obligations are further complemented by European Convention for the ECHR adopted in It has been ratified by 46 states and is applicable to all except nine OSCE states: Belarus, Canada, the Holy Seat, Kazakhstan, Kirgizstan, Tajikistan, Turkmenistan, Uzbekistan and US. In related fashion to the ICCPR, Article 1 of the ECHR obligates agreed states, to secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention. 35 Respectively, all military personnel are guaranteed same rights as other citizens. However, there are some limitations imposed within the ICCPR and the ECHR for exercising rights. The specific condition und justified reasons under which limitations are implemented in domestic legislation concerning military personnel is discussed later in this work. In general, human rights fall into three basic categories; those that cannot be derogated from (non-derogable rights), those that can be derogated from in a public emergency 34 UN, The Universal Declaration of Human Rights (10 December 1948); available at: [accessed: 19/01/2011]. 35 EU, Council of Europe, European Convention for the Protection of Human rights and Fundamental Freedoms (4 November 1950); available at: [accessed: 19/01/ 2011]. 21